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PETITIONER: MAKTUL

       Vs.

RESPONDENT: Mst.  MANBHARI & OTHERS

DATE OF JUDGMENT: 23/05/1958

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. SUBBARAO, K.

CITATION:  1958 AIR  918            1959 SCR 1099

ACT:        Customary  Law-Inheritence-Hindu  in  Punjab  succeeding  to        maternal  grandfather’s estate-Such property,  if  ancestral        qua his sons-Stare decisis-Rule, when inapplicable.

HEADNOTE: Under the customary law of the Punjab property inherited  by a Hindu male from his maternal grandfather is not  ancestral property qua his sons. Narotam Chand v. Mst.  Durga Devi, I. L. R. (1950) Punj.  1, approved. Lehna  v. Musammat Thakyi, (1895) 30 P. R. I24 and  Musammat Attar  Kaur  v.  Nikkoo, (1924) I. L. R.  5  Lah.  356,  not approved. The  rule of stare decisis is not an inflexible rule and  is inapplicable  where  the decision is clearly  erroneous  and when its reversal does not shake any titles or contracts  or alter the general course of dealing.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 150 of 1955. Appeal  from the judgment and decree dated August 20,  1952, of the Punjab High Court in Regular First Appeal No. 107  of 1949 arising out of the judgment 140 1100 and  decree dated March 22, 1948, of the Court of  the  sub- Judge 1st Class, Panipat, in Suit No. 361 of 1947. Dr.  J. N. Banerjee and K. L. Mehta, for the appellant. Gopal Singh, for respondents Nos. 1 to 9. 1958.  May 23.  The Judgment of the Court was delivered by GAJENDRAGADKAR  J.-If a Hindu governed by the customary  law prevailing   in   the  Punjab  succeeds  to   his   maternal grandfather’s estate, is the property in his hands ancestral property   qua  his  own  sons?   This  is  the  short   and interesting  question  of law which arises in  this  appeal. The  appellant is the son of Sarup, respondent 10.   On  the death  of his mother Musammat Rajo, respondent 10  inherited the suit properties from his maternal grandfather Moti.   On

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March  22, 1927, he executed a registered mortgage  deed  in respect  of  the  said properties in favour  of  Shibba  the ancestor of respondents I to 9 for Rs. 5,000.  Subsequently, on  April 12, 1929, he sold the equity of redemption to  the said  mortgagee Shibba for Rs.  11,000.  In Suit No. 145  of 1946  filed by the appellant in the court of the  Sub-Judge, Panipat, from which the present appeal arises, the appellant had  claimed  a  declaration that the  two  transactions  of mortgage  and  sale  in  question  did  not  bind  his   own reversionary rights, because the impugned transactions  were without  consideration and were not supported by  any  legal necessity.  ’His allegation was that his family was governed by  the  custom  prevailing in the Punjab  and,  under  this custom,  the property in suit was ancestral property and  he was  entitled  to  challenge its alienation  by  his  father respondent 10.  Respondents 1 to 9 disputed the  appellant’s right  to  bring  the  present  suit  and  urged  that   the alienations by respondent 10 were for consideration and  for legal  necessity.   It  was,  however,  common  ground  that respondent 10 and the appellant were governed by the  custom prevailing in the Punjab.  The learned trial judge held that the property in dispute was ancestral qua the appellant 1101 and  that  the impugned alienations were  not  effected  for consideration  or  for legal necessity.  He,  however,  held that  the  appellant  was  not born at  the  time  when  the mortgage  deed  in question was executed and so he  was  not entitled  to challenge it.  In the result the appellant  was given  a declaration that the sale in dispute did  not  bind the  appellant’s reversionary rights in the  property  after the death of respondent 10.  The appellant’s claim in regard to  the mortgage was dismissed.  Respondents 1 to 9 went  in appeal  against this decree to the District Judge at  Karnal and contended that the suit had abated in the trial court as a  result of the death of one of the defendants pending  the decision  of the learned trial judge.  The learned  District Judge  rejected this contention but he set aside the  decree and  remanded the suit for proceedings for substituting  the legal  representatives of the deceased defendant  Ram  Kala. After  remand the legal representatives of the deceased  Ram Kala  were  brought on record and  ultimately  the  original decree  passed  by  the trial court ",as  confirmed  by  the learned  trial judge.  Respondents I to 9  again  challenged this decree by preferring an appeal to the District Judge at Karnal.   The learned District Judge held that the value  of the  subject-matter of the suit was more than Rs. 5,000  and so  he  ordered  that the memorandum  of  appeal  should  be returned  to  respondents I to 9 to enable them to  file  an appeal before the High Court.  That is how respondents I  to 9  took their appeal to the High Court of Punjab.  The  High Court  took  the  view  that the appeal  had  in  fact  been properly  filed the District Court; but even so it  did  not ask respondents 1 to 9 to go back to the District Court, but condoned  the  delay  made by the said  respondents  in  the presentation  of the appeal before itself and  proceeded  to deal  with  the appeal on the merits.  The High  Court  held that  the  property  inherited by  respondent  10  was  ’not ancestral property qua the appellant, and so it allowed  the appeal  preferred  by respondents 1 to 9 and  dismissed  the appellant’s suit.  In view of the fact that the point of law raised  before  the High Court was not free from  doubt  the High 1102 Court  ordered  that  parties should bear  their  own  costs throughout.   The appellant then applied for and obtained  a

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certificate  from the High Court under the first part of  s. 110  of  the  Code  of Civil Procedure.   It  is  with  this certificate  that  the present appeal has come  before  this Court  and  the  only point which has been  raised  for  our decision  is whether the property in suit can be held to  be ancestral property between the appellant and respondent 10. Under the Hindu law, it is now clear that the only  property that can be called ancestral property is property  inherited by  a  person from his father, father’s father  or  father’s father’s  father.   It  is  true  that  in  Raja   Chelikani Venkayyamma Garu v. Raja Chelikani Venkataraman ayyamma  (1) the Privy Council had held that under Mitakshara law the two sons  of  a Hindu person’s only daughter  succeed  on  their mother’s  death  to  his  estate  jointly  with  benefit  of survivorship as being joint ancestral estate.  This decision had given rise to a conflict of judicial opinion in the High Courts of this country.  But in Muhammad Husain Khan v. Babu Kishva  Nandan Sahai (2) this conflict was set at rest  when the  Privy Council held that under Hindu law a son does  not acquire by birth an interest jointly with his father in  the estate   which  the  latter  inherits  from   his   maternal grandfather.   The  original  text  of  the  Mitakshara  was considered and it was observed that the ancestral estate  in which, under the Hindu law, a son acquires jointly with  his father  an  interest  by  birth, must  be  confined  to  the property descending to the father from his male ancestor  in the male line.  Sir Shadi Lal, who delivered the judgment of the  Board,  explained  the earlier decision  of  the  Privy Council  in Raja Chelikani Venkayyamma Garu’s case  (1)  and observed  that  in  the said case " it  was  unnecessary  to express  any opinion upon the abstract question whether  the property which the daughter’s son inherits from his maternal grandfather  is  ancestral property in the  technical  sense that  his son acquires therein by birth an interest  jointly with him." The learned Judge further clarified the  position by stating that the (1) (19O2) L.R. 29 I.A. 156. (2) (1937) L.R. 64 I.A. 250. 1103 phrase  ’ancestral property’ used in the said  judgment  was used in the ordinary meaning, viz., property which  devolves upon  a person from his ancestor and not in  the  restricted sense  of  the  Hindu  law which imports  the  idea  of  the acquisition  of interest on birth by a son jointly with  his father.   Thus  there is no doubt that under the  Hindu  law property inherited by a person from his maternal grandfather is not ancestral property qua his sons.  The question  which arises  in the present appeal is: what is the true  position in  regard  to  such  a property  under  the  Customary  law prevailing in the Punjab ? This  question  has been considered by Full Benches  of  the High  Court  of  Punjab on three occasions.   Let  us  first consider these decisions.  In Lehna v. Musammat Thakri  (1), it  was  held  by the Full Bench (Roe S. J.  and  Rivaz  J., Chatterji  J.  dissenting) that " in the  village  community where  a daughter succeeds, either in preference to,  or  in default  of, heirs male, to property which, if  the  descent had  been  through a son, would be ancestral  property,  she simply  acts  as  a  conduit to  pass  on  the  property  as ancestral  property  to her sons and their  descendants  and does not alter the character of the property simply  because she  happens to be a female ". Chatterji J.,  however,  held that the word "ancestral" can only be used in a relative and not  in  a  fixed or absolute sense in  customary  law,  and before  this character can be predicated of any property  in

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the  hands  of a male owner, it must be found  that  it  has descended  to him from a male ancestor and in the case of  a claim by collaterals, from a male ancestor common to him and the  claimants.  It is apparent from the  majority  judgment that  the  learned judges did not find  the  alleged  custom about the character of the property proved by any  evidence. They proceeded to deal with the question rather on a  priori considerations  and the main basis for the decision  appears to  be  that  the  property cannot  lose  its  character  of ancestral  property  merely because it has  come  through  a female  who succeeded her father in default of  male  heirs. Chatterji J. dissented from this (1) [1895] 30 P.R. 124. 1104 approach.  He observed that he could not recall any instance in  which  property  derived  from  or  through  any  female ancestor  among Hindus had been decided to fall  within  the category of ancestral property under the customary law.   He also pointed out that the statement of the learned author of the Digest on the Customary Law of the Punjab on this  point did  ’not support the majority view.  Thus it would  not  be unreasonable to say that the majority decision in this  case is  not a decision on the proof of custom as such. The  same point was again raised before a Full Bench of     the   High Court of Punjab in Musammat Attar Kaur v.    Nikkoo     (1). Sir Shadi Lal C. T. who delivered the principal judgment  of the Full Bench conceded that there was " a great deal to  be said in favour of the proposition that, unless the land came to  a person by descent from a lineal male ancestor  in  the male  line, it should not be treated as ancestral." He  also conceded that the decision in the earlier Full Bench case of Lehna (2) did not rest upon any evidence relating to  custom on  the  subject but was based on what the majority  of  the judges  considered  to  be the  general  principles  of  the customary  law, and upon the argument abinconvenienti.   The learned  Chief Justice then took into account the fact  that the question about the character of such property even under the Hindu law was not free from doubt and he referred to the conflict  of  judicial opinion on the  said  point.   Having regard  to this conflict the learned Chief Justice  was  not inclined to reopen the issue which had been concluded by the earlier  Full  Bench decision, and basin(,  himself  on  the doctrine of stare decisis he held that the majority decision in  Lehna’s  case (2), should be treated as  good  law.   It would  be noticed that the -judgment of Sir Shadi Lal C.  J. clearly indicates that, on the merits, he did not feel quite happy about the earlier decision in Lehna’s case  (2). It  appears that the same question was again  raised  before another  Full Bench of the High Court of Punjab in  -Narotam Chand v. Mst.  Durga Devi (3).  In this (1) (1924) I.L.R. 5 Lah. 356.    (2) [1895] 30 P.R. 124. (3) I.L.R. [1950] Pun. 1. 1105 case  the main question which arose for decision  was  under art.  2  of the Punjab Limitation (Custom) Act  I  of  1920. This  article  governs  suits for  possession  of  ancestral immoveable  property which has been alienated on the  ground that  the  alienation  is  not  binding  on  the   plaintiff according  to  custom.   It  provides  for  two  periods  of limitation  according as a declaratory decree is or  is  not claimed.   In dealing with the point as to whether the  suit in  question attracted the provisions of art. 2 of Act I  of 1920, the Full Bench had to consider whether the property in suit was ancestral property or not; and that raised the same old question whether property from maternal grand-father  in

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the  hands  of  a grandson can  be  described  as  ancestral property  or that such property in the hands of  a  daughter can  be given that description.  The matter appears to  have been elaborately argued before the Full Bench.  The previous Full  Bench decisions were cited and reference was  made  to two  decisions of the Privy Council which we will  presently consider.   Mahajan  J., as he then was, who  delivered  the main  judgment  of  the Full Bench held  that  the  property inherited  by a Hindu from his maternal grandfather  is  not ancestral qua his descendants under the customary law of the Punjab.   The  learned judge also held that  the  two  Privy Council  decisions  cited  before the court  had  in  effect overruled  the  earlier Full Bench decisions of  the  Punjab High  Court.   It is this last decision of  the  Full  Bench which  has  been followed by the High Court in  the  present proceedings.  The appellant contends that the high Court was in  error in not following the earlier Full Bench  decisions on  this  point  and  it is urged on  his  behalf  that  the decision of the last Full Bench in Narotam Chand’s case (1), should not be accepted as correct.  We do not think that the appellant’s contention is well-founded. So  far  as  the statement of the customary  law  itself  is concerned,  Rattigan’s  Digest  which  is  regarded  as   an authority  on the subject, does not support the  appellant’s case.  Inpara. 59 of the Digest of Civil Law for the  Punjab chiefly based on the customary law it is (1) I.L.R. [1950] Pun. 1. 1106 stated  that  ancestral immoveable  property  is  ordinarily inalienable  (especially  amongst  Jats,  residing  in   the Central  Districts  of the Punjab) except for  necessity  or with  the consent of male descendants or, in the case  of  a sonless proprietor, of his male collaterals.  Provided  that the proprietor can alienate ancestral immoveable property at pleasure if there is at the date of such alienation  neither a  male  descendant  nor a  male  collateral  in  existence. Following  this  statement  of the law  the  learned  author proceeds  to  explain the meaning of ancestral  property  in these  words:  "Ancestral property means, as  regards  sons, property  inherited from a direct male lenial ancestor,  and as  regards  collaterals property inherited  from  a  common ancestor ". Thus, so far as the customary law in the  Punjab can  be  gathered,  the statement  of  Rattigan  is  clearly against the appellant. Then  as  regards the first Fall Bench decision  in  Lehna’s case  (1),  as  we have already pointed  out,  there  is  no discussion  about  any  evidence of  custom  and  indeed  no evidence  about the alleged custom appears to have been  led before  the learned judges.  It is, therefore, difficult  to accept  this  decision  as  embodying  the  learned  judges’ considered view on the question of custom as such.  That  in effect  is  the  criticism  made  by  Chatterji  J.  in  his dissenting  judgment and we are inclined to agree  with  the views  expressed  by  Chatterji J. When  this  question  was raised  before the second Full Bench in Mst.   Attar  Kaur’s case  (2), Sir Shadi Lal C. J. rested his decision on  stare decisis  mainly  because  the  true  position  on  the  said question  even under the Hindu law was then in doubt.   This consideration  has now lost all its validity because, as  we have  already indicated, the true position under  the  Hindu law   about  the  character  of  such  property   has   been authoritatively  explained by Sir Shadi Lal himself  in  the Privy Council decision in Muhammad Husain Khan’s case (3  ). That is why we think not much useful guidance or help can be derived from this second Full Bench decision.  The last Full

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Bench decision in Narotam Chand’s case (4), is (1)  [1895] 30 P.R. 124. (2)  (1924) I.L.R. 5 Lah. 356. (3)  (1937) L.R. 64 I.A. 250. (4)  I.L.R. [1950] Pun. 1. 1107 based  substantially  on the view that, as a result  of  the Privy  Council decision in Muhammad Husain Khan’s case  (1), the  two earlier Full Bench decisions must be taken to  have been overruled.  Besides, the learned judges who constituted this  Full  Bench have also examined the merits of  the  two earlier judgments and have given reasons why they should not be  takedas correctly deciding the true position  under  the customary law.  In our opinion, the view taken by this  Full Bench is on the whole correct and must be confirmed. It would now be necessary to consider the two Privy  Council decisions  on which reliance has been placed by Mahajan  J., as he then was, in support of his conclusion that they  have overruled the earlier Full Bench decisions.  In Attar  Singh v. Thakar Singh(") the Privy Council was dealing with a suit by Hindu minors to set aside their father’s deed of sale  of the lands in suit to the defendants on the ground that  they were ancestral.  It was held that, as the plaintiffs claimed through  their father as son and heir of Dhanna  Singh,  the onus was on them to show that the lands were not acquired by Dhanna Singh and, as that onus was not discharged, the lands must  be deemed to be acquired properties of  Dhaiina  Singh and  that deed could not be set aside.  The parties to  this litigation were governed by the customary law of the Punjab. In dealing with the character of the property in suit,  Lord Collins  who  delivered the judgment of the  Board  observed that  "  it is through father, as heir  of  the  above-named Dhanna  Singh, that the plaintiffs claimed, and  unless  the lands  came to Dhanina Singh by descent from a  lineal  male ancestor in the male line, through whom the plaintiffs  also in  like  manner claimed, they are not deemed  ancestral  in Hindu law." This statement indicates that, according to  the Board,  it is only where property descends from  the  lineal male  ancestor  in  the male line that it  partakes  of  the character  of ancestral property.  It may be  conceded  that the  question  as  to  whether  property  inherited  from  a maternal grandfather is ancestral property or (1) (1937) L.R. 64 I.A. 250. (2) (1908) L.R. 35 I.A. 206. 141 1108 not  did  not arise for the decision of the  Board  in  this case;  but  it is significant that the words  used  by  Lord Collins in describing the true position under the Hindu  law in  regard  to  the  character  of  ancestral  property  are emphatic  and unambiguous and this statement has  been  made while dealing with the case governed by the customary law of the  Punjab.   This  statement of the  law  was  cited  with approval and as pertinent by Sir Shadi Lal when he delivered the  judgment of the Board Muhammad Husain Khan’s case  (1). The  learned judge has then added that " Attar Singh’s  case (2),  however, related to the property which came from  male collaterals and not from the maternal grandfather and it was governed  by  the  custom  of the Punjab;  but  it  was  not suggested that the custom differed from the Hindu law on the issue before their Lordships ". The effect of these observa- tions would clearly appear to be that the test laid down  in Attar  Singh’s case(2) would apply as much to the Hindu  law as  to  the customary law of the Punjab.   In  our  opinion, these  observations  made by Sir Shadi Lal are  entitled  to

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respect and have been rightly relied upon by Mahajan J.,  as he  then was, in the last Full Bench case  (Narotam  Chand’s case  (3)), to which we have already referred.  We  may  add that  it  may not be technically correct to say  that  these observations overrule the earlier Full Bench decision of the Punjab High Court on the point.  We entertain no doubt that, if  the  relevant  observations of  Lord  Collins  in  Attar Singh’s  case  (2) had been considered in  the  second  Full Bench  decision,  they would have hesitated to rely  on  the doctrine  of  stare  decisis  in  support  of  their   final decision. There   is  one  more  point  which  still  remains  to   be considered.   Having  regard  to  the  principle  of  -stare decisis,  would it be right to hold that the view  expressed by the High Court of Punjab as early as 1895 was erroneous ? the principle of stare decisis is thus stated in  Halsbury’s Laws of England(4): (1)  (1937) L.R. 64 I.A. 250. (2) (1908) L.R. 35 I.A. 206. (3)  I.L.R. [1950] Pun. 1. (4) 2nd Edn., Vol.  XIX, P. 257, para. 557. 1109 "  Apart  from any question as to the Courts  being  of  co- ordinate  jurisdiction, a decision which has  been  followed for  a  long  period of time, and has  been  acted  upon  by persons in the formation of contracts or in the  disposition of their property, or in the general conduct of affairs,  or in  legal  procedure or in other, ways,  will  generally  be followed  by  courts  of higher  authority  than  the  court establishing the rule, even though the court before whom the matter  arises  afterwards  might not have  given  the  same decision  had the question come before it  originally.   But the supreme appellate Court will not shrink from  overruling a  decision,  or  series of  decisions,  which  establish  a doctrine plainly outside the statute and outside the  common law,  when  no  title and no contract  will  be  shaken,  no persons  can complain, and no general course of  dealing  be altered by the remedy of a mistake." The  same  doctrine  is  thus  explained  in  Corpus   Juris Secundum(1) " Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases.  This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts, it is not universally applicable." The  Corpus Juris Secundum (2), however, adds a  rider  that "previous  decisions  should not be followed to  the  extent that grievous wrong may result; and, accordingly, the courts ordinarily   will  not  adhere  to  a  rule   or   principle established  by previous decisions which they are  convinced is  erroneous.   The  rule  of  stare  decisis  is  not   so imperative   or  inflexible  as  to  preclude  a   departure therefrom   in  any  case,  but  its  application  must   be determined in each case by the discretion of the court,  and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result." In the present case it is difficult to say that the doctrine of stare decisis really applies because the (1)  VOL  XXI P. 302, para. 187.  (2) VOI.   XXI.   P.  322, para. 193. 110 Correctness  of  the  first Full  Bench  decision  has  been challenged in the Punjab High Court from time to time and in fact the said decision has been reversed in .950.   Besides,

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in  1908,  the Privy Council made emphatic  observations  in Attar  Singh’s  case  (1) which  considerably  impaired  the validity  of the first Full Bench decision ; so it would  be difficult  to say that the decision of the first Full  Bench has been consistently followed by the community since  1895. It  cannot also be said that reversal of the  said  decision shakes  any title or contract.  The only effect of the  said decision  was  to  confer upon the son  of  the  person  who inherited  the  property from his maternal  grandfather  the right to challenge his alienation of the said property.   It is doubtful if such a right can be regarded as the right  in property.   It  merely gives the son ’in  option  either  to accept  the  transaction or to avoid it. It cannot  be  said today  that any pending actions would be  disturbed  because this right has already been taken away by the Full Bench  in 1950.   In  this  connection, it may  also  be  relevant  to consider another aspect of this matter.  If it is held  that the  property  inherited from maternal  grandfather  is  not ancestral property, then it would tend to make the titles of the alienees of -such property more secure.  Besides, we are satisfied  that  the  decision of the first  Full  Bench  is wholly  unsustainable  as  a decision on the  point  of  the relevant  custom.  We are, therefore, inclined to  take  the view  that the doctrine of -stare decisis is  in  applicable and  should present no obstacle in holding that the  earlier cases  of the Full Bench of the Punjab High Court  were  not correctly decided. In the result we confirm the finding of the High Court  that the property in suit is not ancestral property and that  the appellant  has  no  right to bring the  present  suit.   The appeal  accordingly  fails  and  must  be  dismissed.    The appellants  will pay the respondent’s costs in  this  Court; and parties will bear their own costs in the courts below.                                     Appeal dismissed. (1)  (1908) L.R. 35 I.A. 2o6. 1111