# Bankey Bihari Saran Subba Rao ]. May 23. • Jl.!Jaktul v. Manbhari •

- **Citation:** [1959] 1 S.C.R. 1099
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** Gajendragadkar, A. K. Sarkar, SuBBA' · RAO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bankey-bihari-saran-subba-rao-may-23-jl-jaktul-v-manbhari-1454
- **Pages:** 12

## Headnote

'
Customary Law-Inheritence-Hindu in Punjab succeeding to
maternal grandfather's estate-Such proterty, if ancestral qua /Jis
sons-Stare decisis-Rule, when inapplicable.
Under the customary law of the ·Punjab property inht!~ited
by a Hindu male from his maternal grandfather is not .. an~estral
property qua his sons.
·
· ·..
·.
:·
Narotam Chand v. Mst. Durga Devi, I. L. R. (1950) Punj. r,
approved.
· ·
·
Lelina v. Musammat Thakri, (1895) 30 P. R. 124 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' l.napp1icable where the decision is clearly erroneous and· wht!n its
r.evei;sal does uot . shake any titles .,er .contracts ·or altei the
general course .of dealing.
., , ,.,
',
CrvIL APPELLATE JU,RI8DICTI0N! Civ,il Appeal No;
150.of 1955. . . .
.; . . .. .
· '.
,:.
· 'AJl:peal froiri'tll.e judgment and decr.eedateq A;ugust
20, 1952; ·of'th'e Puhjab High Court,'.in R'egular ll'irst·
~t>peal Ni?:.·1010£}~49 arisin.~,' ~~t :?f, the ·judgment
. ; ~J •
140·'
Mahant
Rctmdhan Puri
v.
Bankey
Bihari Saran
Subba Rao ].
May 23.
•
Jl.!Jaktul
v.
Manbhari
•
1100
SUPREME COURT REPORTS
[1959]
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 appel-·
lant.
Gopal Singh, for respondents Nos. 1 to 9.
1958. May 23.
The Judgment of the Court was
delivered by
Gaj.ndragadkar J.
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
March 22, 1927, he executed a registered mortgage
deed in respect of the said properties in favour of
Shibba the ancestor of respondents 1 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 fi£mily 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
•
•
•
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•
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•
S.C.R.
SUPREME COURT REPORTS
not
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
Maktul
v.
Manbhari
appellant was given a declaration that the sale in dis- Gajendragadkar J.
pute 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

## Text

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•
S.C.R.
SUPREME COURT REPORTS
io99
the appellant is not liable to render accounts for the
excess receipts.
.. No other point is raised before us. In the result,
the decree of the High Court is set aside and that of
the Subordinate Judge is restored. The appellant will
have his costs throughout.
Appeal allowed.
MAKTUL
v.
Mst. MANBHARI & OTHERS
(GAJENDRAGADKAR, A. K. SARKAR and SuBBA' ·
RAO JJ.)
'
Customary Law-Inheritence-Hindu in Punjab succeeding to
maternal grandfather's estate-Such proterty, if ancestral qua /Jis
sons-Stare decisis-Rule, when inapplicable.
Under the customary law of the ·Punjab property inht!~ited
by a Hindu male from his maternal grandfather is not .. an~estral
property qua his sons.
·
· ·..
·.
:·
Narotam Chand v. Mst. Durga Devi, I. L. R. (1950) Punj. r,
approved.
· ·
·
Lelina v. Musammat Thakri, (1895) 30 P. R. 124 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' l.napp1icable where the decision is clearly erroneous and· wht!n its
r.evei;sal does uot . shake any titles .,er .contracts ·or altei the
general course .of dealing.
., , ,.,
',
CrvIL APPELLATE JU,RI8DICTI0N! Civ,il Appeal No;
150.of 1955. . . .
.; . . .. .
· '.
,:.
· 'AJl:peal froiri'tll.e judgment and decr.eedateq A;ugust
20, 1952; ·of'th'e Puhjab High Court,'.in R'egular ll'irst·
~t>peal Ni?:.·1010£}~49 arisin.~,' ~~t :?f, the ·judgment
. ; ~J •
140·'
Mahant
Rctmdhan Puri
v.
Bankey
Bihari Saran
Subba Rao ].
May 23.
•
Jl.!Jaktul
v.
Manbhari
•
1100
SUPREME COURT REPORTS
[1959]
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 appel-·
lant.
Gopal Singh, for respondents Nos. 1 to 9.
1958. May 23.
The Judgment of the Court was
delivered by
Gaj.ndragadkar J.
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
March 22, 1927, he executed a registered mortgage
deed in respect of the said properties in favour of
Shibba the ancestor of respondents 1 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 fi£mily 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
•
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•
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•
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•
S.C.R.
SUPREME COURT REPORTS
not
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
Maktul
v.
Manbhari
appellant was given a declaration that the sale in dis- Gajendragadkar J.
pute 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 was confirmed by the learned trial
judge. Respondents 1 to 9 again challenged this decree
by preferring an appeal to the District Judge at
Karna]. 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 1 to 9
to enable them to file an appeal before the High Court.
That is how respondents 1 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
in 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 pref~rred 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
•
J.1 aktul
v.
/11 anbhari
•
1102
SUPREME COURT REPORTS
[1959]
Court ordered th~ t piitrties should. bear their own costs
throughout. The .~J:\pellant then appFed for and
obtained a certificate from 'the High .Court under the
first part of s. llO of the Code of Civil Procedure. It
is with this certificate that the present appeal has
Gaje11dragadhar ]. 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 IO.
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 Ghelikani Venkayyamma Garu v. Raja Ghelikani
Venkataramanayyamma (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 Sakai(') 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 inale line.
Sir Shadi Lal, who delivered the judgment of the
.Board, explained the earlier decision of the Privy
Council in Raja Ghelikani V enkayyamma 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 ari interest jointly with him." The learned
• Judge further clarified the position by stating that the
(1) (1902) L.
0R. 29 I.A. 156.
(2) (1937) L.R. 64 I.A. 250 .
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S.C.R.
SUPREME COURT REPORTS
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
Maktul
v.
Manbhari
by a son jointly with his father. Thus there is no Gajendragadkar J.
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 ]'ull Benches
of the High Court of Punjab on three ,occasions .... Let
us first consider these decisions.
In Lehna v: Mus'ammat Thalcri (1 ), it was held by the Fdll Bertch (Roe
S. J:~ and Rivaz J., Chatterji J. d~ssenting) that " in
the village community where a daughter succeeds,
mther in preference to, or in default of, heirs male, to
pi;;operty 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 a.nd 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 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 i'n
default of male· heirs.- Chatterji J. dissented from this •
111akful
v.
Alanbhari
•
1104
SUPREME COURT REPORTS
[1959]
approach. He observ-ed 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 stateGajendragadkar J. ment 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. J. 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 ah inconvenienti. 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 isuue which had been concluded by
the earlier Full Bench decision, and basing 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('). In this
(1) (1924) l.L.R. 5 Lah. 356.
(2) [1895] 30 P.R. 124.
• (3) I.L.R. [1950] Pun. r .
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S.C.R.
SUPREME COURT REPORTS
1105
case the main question which arose for decision was
r95B
under art. 2 of the Punjab Limitation (Custom) Act I
Maktul
of 1920. This article governs suits for possession of
v.
ancestral immoveable property which has been alienatManbhari
ed on the ground that the alienation is not binding on
-
the plaintiff according to custom. It provides for two Gajendragadkar J'
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 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
Pz:ivy 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 ]'ull 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 Ohan.d's case (1), should not
be accepted as correct. We do not think that the
appellant's contention is well-founded.
t
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 tile appellant's case. In para. 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,
.
•
Alaktul
v.
Manbhari
•
1106
SUPRffiM:El COURT REPORTS
[1959)
stated that ancestral immoveable property is ordinarily
inalienable (especially amongst J ats, 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
Gaj•ndmgadka' J. 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 Full Bench decision in
Lehna's case (1), as we have already pointed out, there
is no discussion about any evidence of custom apd
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 ll:lst. Attar Kaur's case {2}, Sir Shadi Lal
C. J. rested his decision on stare decisis mainl:y 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 ('). That is
why we think not much useful guidance or help can be
derived from this second Full Bench decision. The last
Full Bench decision in Narotam Ohand's casf('); :is
(1) [1895) 30P.R. 124.
(2i°\1924) I.t.J.i.: 5 L~h.'356 .
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(3) (1937) LR. 64"1.A. 250.
(4) I:L.R. [1950) Pun, 1 •
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S.C.R.
SUPREME COUR'.l' REPORTS
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
Maktul
v.
Manbhari
examined the merits of the two earlier judgments and Gajendragadkar J.
have given reasons why they should not be taken as
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 (2) 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
thmugh 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 Dhanna 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 Dhanna 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.
141
(2) (1908) L.R. 3~ I.A. 206.
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ll08
SUPREME COURT REPORTS
. [1959]
not did not arise for tHe decision of the Board in this
Maktul
case; but it is significant that the words used by
v.
Lord Collins in describing the true position under the
Manbhari
Hindu law in . regard to the character of ancestral
Gajenbagadkar J. property tahre bemphaticd anhd_1undam1?iguo?sh ahnd this
·
statemen
as een ma e w ' e ea mg wit
t e 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 in Muhammad Husain Khan's
case('). 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 observations would clearly appear to be that the test laid
down in Attar Singh's case(') 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 respect and have been rightly
relied upon by Mahajan J., as he then was, in the last
Full Bench case (N arotam Chand's case(')), to which
we have already referred. We may add that it may
not be technically correct to say that these observations overrule the earlier ]'ull 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(') had been considered in the
second Full Bench decision, they would have hesitated
to rely on the doctrine of stare deC'isis 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 eHoneous ? The principle of stare decisis is thu's
.stated il\' Halsbury's Laws of. England('):
(1) (1937i L.~. 64 I_.A. 250. .
('<;) , (1908) L.R. 35 I.A. 206,
(3) l.L.R. [1950) Pun. 1.
\4) 2nd l!.dn., Vol. XIX, p. 257, para. 557.
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S.C.R.
SUPREME COURT REPORTS
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
Maktul
v.
1\1anbhari
conduct of affairs, or in legal procedure or in other Gajendragadkar F
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
Sei;undum {1):
"Under the stare decisis rule, a principle o:li 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 th.at 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 follpwed
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 apJ;>lies because the
0
(1) Vol. XXI, p. 302, para. 187.
(2) Vol. XXI, p.° 322, para. 193·
•
•
I958
Jvlaktul
v.
Manbhari
•
1110
SUPREME COURT REPORTS
[1959]
correctness of the first.Full Beuch decision has been
challenged in the Punjab High Court from time to
time and in fact the said decision has been reversed in
1950.
Besides, in 1908, the Privy Council made emphatic observations in Attar Singh's case (1) which
Gajendr•gadkar J. 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
an option either to accept the transaction or to a void
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 tltis
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 inapplicable a~d 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 μot 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 th.e courts below.
Appeal dismissed .
(1) (1908) L.R. 35 I.°A. 2o6.
•
•
•
\