# Nilkanlha SAidramappa Ningashetti v. l(ashinath Somanna NingashetH RaghubaY Dayal }· iy6 r April a8

- **Citation:** [1962] 2 S.C.R. 558
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeals Nos. 645 and 646 of 1957
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, K. c. DAS GUPTA, T. L. VENKATARAMA ArYAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nilkanlha-saidramappa-ningashetti-v-l-ashinath-somanna-ningasheth-raghubay-2274
- **Pages:** 13

## Headnote

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.
P died on July 14, 1932, leaving behind his widow, Las 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 Zerpesbgi and for certain other necessary purposes. The respondents who were the reversioners
2 S.C.R. SUPREME COURT REPORTS
559
instituted a suit challenging the validity of the sale. The trial
196.
court and the lower appellate court hel<l that the sale was a
proper one binding on the reversioners. On second appeal, a
]aisri Sahu
Division Bench of the Patna High Court took a contrary view
v.
and allowed the appeal. One of the judges while he did not Rajdewan Dubey
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 s11bject
to usufructuary 1nortgage 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
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 he 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,
Va11kaji v. Vishnu, (1894) I.L.R. 18 Born. 534 and Viraraju v.
Vankataratnam, I.L.R. [1939] 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. 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 deci·
sions 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. Lalt" Singh, (r915) LL.R. 37 All. 604,
Seshamma v. Venkata Narasimharao, I.L.R. (1940] Mad. 454,
Bilimoria v. Centri.it Bank of India, A.LR. !943 Nag. 340 and
Virayya v. Venkata Subbayya, A.LR. 1955 Andhra 215, considered.
]aisri Sahu
560
SUPREME COURT REPORTS
[1962]
CIVIL
APPELLATE
JURISDICTION:
Civil Appeals
Nos. 645 and 646 of 1957.
v.
Appeal from the judgment and decree dated August
R•jdewan Dubey 9, 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.
R. K. Garg, M. K. Ramamurthi, S. C. Agarwal, and
D. P. Singh, for respondents Nos. l to 4.
1961. April 28.
The Judgment of the Court was
delivered by
V•nkata.ama
VENKATARAMA
AIYAR, J.-These are appeals
Aiyar

## Text

1961
Nilkanlha
SAidramappa
Ningashetti
v.
l(ashinath
Somanna
NingashetH
RaghubaY
Dayal }·
iy6 r
April a8.
558
SUPREME COURT REPORTS
[1962)
praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore
no appeal was maintainable under s. 39(l)(VI) of the
Arbitration Act which allows an appeal against itn
order refusing to set aside an award.
Lastly, it was submitted that the objection to the
effect that the award was illegal and without jurisdiction, inasmuch as the arbitrator included in the
award property which did not fall within the scope of
his authority, should have been considered by the
trial Court. Such an objection was not pressed before
the trial Court and therefore the High Court did not
allow that objection to be taken before it.
We think
that the High Court was right in not allowing the
objection to be raised since it, being not pressed in the
trial Court, will be presumed to have been given up.
We therefore see no force in this appeal and dismiss
it with costs.
Appeal dismissed.
JAISRI SAHU
v.
RAJDEWAN DUBEY AND OTHERS
(P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. c. DAS
GUPTA and T. L. VENKATARAMA ArYAR, JJ.)
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.
P died on July 14, 1932, leaving behind his widow, Las 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 Zerpesbgi and for certain other necessary purposes. The respondents who were the reversioners
2 S.C.R. SUPREME COURT REPORTS
559
instituted a suit challenging the validity of the sale. The trial
196.
court and the lower appellate court hel<l that the sale was a
proper one binding on the reversioners. On second appeal, a
]aisri Sahu
Division Bench of the Patna High Court took a contrary view
v.
and allowed the appeal. One of the judges while he did not Rajdewan Dubey
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 s11bject
to usufructuary 1nortgage 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
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 he 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,
Va11kaji v. Vishnu, (1894) I.L.R. 18 Born. 534 and Viraraju v.
Vankataratnam, I.L.R. [1939] 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. 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 deci·
sions 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. Lalt" Singh, (r915) LL.R. 37 All. 604,
Seshamma v. Venkata Narasimharao, I.L.R. (1940] Mad. 454,
Bilimoria v. Centri.it Bank of India, A.LR. !943 Nag. 340 and
Virayya v. Venkata Subbayya, A.LR. 1955 Andhra 215, considered.
]aisri Sahu
560
SUPREME COURT REPORTS
[1962]
CIVIL
APPELLATE
JURISDICTION:
Civil Appeals
Nos. 645 and 646 of 1957.
v.
Appeal from the judgment and decree dated August
R•jdewan Dubey 9, 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.
R. K. Garg, M. K. Ramamurthi, S. C. Agarwal, and
D. P. Singh, for respondents Nos. l to 4.
1961. April 28.
The Judgment of the Court was
delivered by
V•nkata.ama
VENKATARAMA
AIYAR, J.-These are appeals
Aiyar J.
against the judgmflnt of the High Court of Patna in
Second Appeals Nos. 2155 and 2156 of 1948 on certifi.
cates granted by the High Court under Art. 133(l)(c)
of the Constitution. The facts leading to this Iitiga.
tion 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 Dubey, 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-matt.er 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
2 S.C.R. SUPREME COURT REPORTS
561
to redeem the Zerpeshgi, but the Zerpeshgidars refused
r96r
to receive the amount and surrender possession of the
jaisri Sahu
properties.
The appellant deposited the mortgage
v.
amount in court under s. 83 of the Transfer of Pro- Rajd,wan Dubey
perty Act and then instituted Title Suit No. 69 of
1944 for redemption.
Meantime the reversioners,
Venkatarama
the respondents herein, had filed Title Suit Ko. 126
Aiy"' J.
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 respondeuts 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, J J., who in separate but
concurring judgments, held that the sale deed in
favour of the appellant was not binding on ~he reversioners. Misra, J., who delfrered 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
SUPREME COURT REPORTS
[1962]
z96z
Appeal. He, however, held, following the decision in
Dasrath Singh v. Damri Singh (1) that a widow canJaisti Sahu
v.
not by selling properties subject to usufructuary mortRajdewan Dubey gage jeopardise the right of the reversioners to redeem,
and that, therefore, the sale would not he binding on
Venkatarama
them.
A different view was taken in Lala Ram Asre
Aiyar /.
Singh v. Ambica Lal (2), 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 11·hich 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 :1ppellant 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
{IJ 8 Pat. L.T. 314; A.I.R. 1927 Pat. 219.
(2) II Pat. L.T. 6; A.I.R. 1929 Pat. 216,
2 s.c.R. SUPREME COURT REPORTS
563
Order dated November 27, 1956, that there being a
r96i
conflict between the decisions in Dasrath Singh's
Jaisri Sahu
case (1) and Lala Ram Asre Singh's case('), the point
v.
was one of sufficient importance for grant of leave to Rajdewan Dubey
appeal to this Court. They also stated that the question as to the practice to be followed, when there was
Venkata•ama
I
Aiyar ].
a conflict of decisions, was ikewise 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 appl'lllant 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
Mun;;if himself observes with reference to this aspect:
"But in the present suit I have got to consider
the interest of J aisri 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) II Pat. I...T. 6; A.LR. 1929 Pat. 216.
564
SUPREME COURT REPORTS
[1962)
r96r
on appeal and the point is accordingly not open to the
fa;,,; Sahu
respondents.
•.
Dealing next with the points mentioned in the
Rajdewan Dubey Order of the High Court dated November 27, 1956,
the first question that arises for decision is whether
Venkatarama
a sale by a widow of properties which are the subject
Aiyar J.
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. Darnri Singh('). 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:-
"lt 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 t.he 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.1.R. 1927 Pat. 219.
2 S.C.R. SUPREME COURT REPORTS
565
the reversioners therein being only spes succession.is.
The widow is entitled to the full beneficial enjoyment
of the estate and is not acC1ountable 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 Babooee ('), those of the manager of an infant's estate or
the manager of a joint Hindu family. In Venkaji v.
Vishnu(') 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.
(2) (1856) 6 M.I.A. 393.
(3) (1894) 18 Bom. 534, 536.
(4) I.L.R. [1939] Mad. 226, 231.
,.
1961
Jaisri Sahu
v.
RaJdewan Dub1y
Venkatar11ma
Aiyar ].
566
SUPREME COURT REPORTS
[1962]
r96r
the widow could sell it in discharge of it is a question
which must be determined on the facts of each case,
Jaisri Sahu
v.
there being no absolute prohibition against her effectRajdewan Dubey ing a sale in a proper case.
What has to be determined is whether the act is one which can be justified
Venkatarama
as that of a prudent owner managing his or her own
Aiyar J.
propcrt.ies. 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 sale 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 Faz! Ali, J J., the facts were similar to
those in Dasrath Singh's case('). Dealing with the contention that a sale by the widow of properties which
were the subject-matter of a Zerpeshgi 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, wi:th 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., de!i-
(1) 8 Pat. L. T. 314; A.l.R. 1927 Pat. 219.
(2) 11 Pat. L. T. 6; A.I.R. 1929 Pat, 216.
2 S.C.R. SUPREME COURT REPORTS
567
vered the judgment in both Dasrath Singh's case(')
and Lala Ram Asre Singh's case(') and that the decision in Dasrath Singh's case(') is not referred to in the
judgment in Lala Ram Asre Singh's case(').
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
ether 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 tho 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
tho High Court gives a decision on a question of law,
it shonld 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 ('), 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 (') and Ohinnasmni Pillai v. /{ unju Pillai('), where decisions had
been given based on the opinions expressed by Devananda Bha.tta in the Smriti Ohandrika, the Privy
Council observed:-
"Curiously enough ther01 is no reference in either
of the Madras judgments referred to above to a
previous decision, Parasara Bhattar v. Rangaraja
Bhattar (') of the same court to w hieh Turner,
(1) S Pat. L.T. 314; A.IR. 1927 Pat. 219.
(2) 11 Pat. L.T. 6; A.I.R. 1929 Pat 1 216.
(3) (1915) I.L.R. 37 All. 604-
(4) (1881) l.L.R. 5 Mad. 291.
(5) (1912) 1.L.R. 35 Mad. 152
(6) (1880) I.L.R. 2 Mad. z.
]aisri Sahu
v.
Rajdewa1i Dubey
Ve11katarania
Aiyar ].
jais,,i Sahv.
v.
Rajdewan Dubey
Venkatar~ma
Aivar ].
568
SUPREME COURT REPORTS
[1962]
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
N arasimharao (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) ('),
Harrison v. Ridgway('),
Ratkinsky v. Jacobs(') 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 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 oi conflicting decisions, and it is therefore desirable that in
(1) r.L.R. [1940] Mad. 454, 474·
(2) (1884) 9 P.D. 96.
(3) (1925) 133 L.T. 238.
(4) [1929] l !CB. 24.
(5) [1935] 1 K.B. 15·
2 S.C.R. SUPREME COURT REPORTS
569
case of difference of opinion, the question shouid 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 Sesha1nrna v. Venkata
N arasirnharao (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:-
"l'he court is not bound to follow a decision of
its own if given per incuriarn.
A decision is given
per incuriarn 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 (') it has been hold
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 Bilirnoria 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
(r) LL.R. [r940] Mad. 454. 474-
(2) A.LR 1955 Andhra 215, 217.
(3) A.I. R. 1943 Nag 340.
Jaisri Sahu
v.
Rajdewan Dubey
V r.nkatara111a
Aiyar J.
570
SUPREME COURT REPORTS
[1962]
r961
hearing cases would refer the matter for the decision
of a Full Court,. In the result these appeals are
Jaisri Sahu
11
tl
d 1 1
d b tl t . 1
t
v
a owe
an tic c ccrecs passe
y
ie ria cour rcsRajdewa;, Dubey tored with costs throughout. One set of hearing
costs.
Ve11kataraina
Aiyar ].
1961
April z8.
Appeals allowed.
M/S. GEOl~GE OAKES (P.) LTD.
v.
STATE OF MADRAS
(S. K. DAS, J. L. KAPUR, M. HIDAYATULLAH,
J.C. SHAH and T. L. VENKATARAMA ArYAR, JJ.)
Sales Tax-Turnover-If includes tax collected by sellerDecnzing statute-Constitutionality-Constitution of India, Entry
54, List II Seventh Schedule-Government of India Act, z935 (26
Geo. 5 GI Ed. 8 Ch. 2), Entry 48, List II, Sch. VII-Madras
General Sales Tax Act, (Mad. Act IX of r939), ss. 2(i), 2(h), 8BM adras General Sales (Definition of Turnover and Validation of
Assessments) Act, r954 (Mad. XV II of r954), ss. 2, 3-Turnover
and Assessment Ruks, rr. 4, 5, 6. II.
Certain amounts collected by the appellants as salrs tax
were included in their turnover by the sales tax authorities.
They contested the constitutional validity of the Madras
General Sales (Definition of Turnover and Validation of Assessments) Act, 1954. on the ground inter alia that the Sate Legislature went beyond its legislative competence under entry 54
of List II of the Constitution in enacting by the impugned Act
that the amounts collected by the dealer by way of tax shall he
deemed to have formed part of his turnover.
Held, that entry 54 of List II of the Seventh Schedule of
the Constitution is similar to entry 48 of List II of Sch. VII of
the Government of India Act, 1935 sales under which have been
held to be transactions passing ti tie to the Goods from the
seller to the buyer and that a mere executory agreement was
not a sale within the meaning of that entry. The same meaning must be given to entry 54.