# NIRSIIl DHOBIN & ORS v. DR. SUDHIR KUMAR MUKHERJI AND ORS

- **Citation:** [1969] 1 S.C.R. 469
- **Court:** Supreme Court of India
- **Decided:** 1968-07-30
- **Bench:** R. S. Bachawat, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nirsiil-dhobin-ors-v-dr-sudhir-kumar-mukherji-and-ors-4420
- **Pages:** 9

## Headnote

Stare deeisis-Long !inf; of judg1nents of courts taking a certain vie)V
-.:....Different view, even if correct, should not be taken where titles and
transactions based on the settled view would be affected.
Bihar Tenancy Act and Transfer of Property Act s.
117-Lease of
agriculture/ land including homestead-Sub-lease of homestead by original
Jessee whether an agricultural lease governed by the Tenancy Act or a
Jlon-agricultural lease governed by the Transfer of Propert,y Act.
C was the lessee of a plot which consisted of agricultural land as well
as a homestead.
The homestead was later leased to the appellants. The
respondents purchased the rights of C and l>rought a suit against the
appellants for possession of the homestead. The contention of the appellants in defence was that the suit had not been brought according to the
provisions of the Bihar Tenancy Act and hence was not maintainable.
The contention of the respondents was that the lease of the homestead
\~.'as not an agricultural lease within the meaning of s. 117 of the Transfer
of Property Act and was invalid under the provisions of the latter Act.
The trial court decreed the suit.
The fitst appellate court however dismissed it. In doing so it relied on earlier rulings of the Patn.a and Calcutta
High Courts which had held the field for over 55 yea'rs, to the effect that
if the main lease is a lease for agricultural purposes all sub-leases of portions of that leasehold should also be considered as agricultural leases despite the fact that a particular lease may be that of a homestead only. The
High Court in further appeal departed from the view taken in the earlier
cases and decided against the appellants, who came to this Court.
The
main question for consideration was whether the High Court was justified
in departing from the settled view.
HELD : The rule laid down in. the earlief decisions was never departed
from in the past.
The Tenancy Act was amended a number of times
but yet the legislature did not think it necessary to alter or modify the
said ru]e. In law finality is of the utmost importance. Unless so required
in public interest questions of law firmly settled by a long course of
flecisions should not ordinarily be disturbed and it is all the more so in
the case of an interpretation affecting property rights. [471 C-E]
The rule that where the terms of a statute or ordinance are clear then
even a long and uniform course of judicial interpretation of it may be
overruled. if it is contrary to the clear meaning of the enactment
is
inapplicabl·~ to decisions on the basis of which titles and
transactions
must .have been founded [477 DJ
H

## Text

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469
NIRSIIl DHOBIN & ORS.
v.
DR. SUDHIR KUMAR MUKHERJI AND ORS.
July 30 1968
[R. S. BACHAWAT AND K. S. HEGDE, JJ.]
Stare deeisis-Long !inf; of judg1nents of courts taking a certain vie)V
-.:....Different view, even if correct, should not be taken where titles and
transactions based on the settled view would be affected.
Bihar Tenancy Act and Transfer of Property Act s.
117-Lease of
agriculture/ land including homestead-Sub-lease of homestead by original
Jessee whether an agricultural lease governed by the Tenancy Act or a
Jlon-agricultural lease governed by the Transfer of Propert,y Act.
C was the lessee of a plot which consisted of agricultural land as well
as a homestead.
The homestead was later leased to the appellants. The
respondents purchased the rights of C and l>rought a suit against the
appellants for possession of the homestead. The contention of the appellants in defence was that the suit had not been brought according to the
provisions of the Bihar Tenancy Act and hence was not maintainable.
The contention of the respondents was that the lease of the homestead
\~.'as not an agricultural lease within the meaning of s. 117 of the Transfer
of Property Act and was invalid under the provisions of the latter Act.
The trial court decreed the suit.
The fitst appellate court however dismissed it. In doing so it relied on earlier rulings of the Patn.a and Calcutta
High Courts which had held the field for over 55 yea'rs, to the effect that
if the main lease is a lease for agricultural purposes all sub-leases of portions of that leasehold should also be considered as agricultural leases despite the fact that a particular lease may be that of a homestead only. The
High Court in further appeal departed from the view taken in the earlier
cases and decided against the appellants, who came to this Court.
The
main question for consideration was whether the High Court was justified
in departing from the settled view.
HELD : The rule laid down in. the earlief decisions was never departed
from in the past.
The Tenancy Act was amended a number of times
but yet the legislature did not think it necessary to alter or modify the
said ru]e. In law finality is of the utmost importance. Unless so required
in public interest questions of law firmly settled by a long course of
flecisions should not ordinarily be disturbed and it is all the more so in
the case of an interpretation affecting property rights. [471 C-E]
The rule that where the terms of a statute or ordinance are clear then
even a long and uniform course of judicial interpretation of it may be
overruled. if it is contrary to the clear meaning of the enactment
is
inapplicabl·~ to decisions on the basis of which titles and
transactions
must .have been founded [477 DJ
H
Case law referred to.
CIVIL APPELLATE' JURISDICTION : Civil Appeal No. 955 of
1965.
470
SUPREME COL:RT REPORTS
[1969] J S.C.R.
Appeal by special leave from the judgment and decree dated
March 17, 1961 of the Patna High Court in Appeal from Appellate Decree No. 897 of 1956.
U. P. Singh, for the appellants.
K. K. Sinha for respondent No. I.
The Judgment of the Court was delivered by
Hegde, J. In this case a Full Bench of the P<ttna High Court
differing from the view taken in a series of earlier decisions of
that High Court as well as the High Court of Calcutta held that
the provisions of 13ihar Tenancy Act (to be briefly referred to
hereinafter as the Act) do not apply to a lease of a homestead
though that homestead was a part of an earlier lease which was
admittedly an agricultural lease and to which the provisions of
the Act applied.
The appellant challenges the correctness of that
decision.
The relevant facts as found by the fact finding courts are :-
One Chakrapani Singh was the lessee of a plot which consisted
of agricultural lands as well as a homestead.
The homestead was
later separately leased to defendants I
and
2
(appellants).
Thereafkr the plaintiffs purchased the rights of the main Jessee
and sued the appellants for possession of the homestead.
The
appellants resisted the suit mainly on the ground that it had not
been brought in accordance with the provisions of the Act and
hence not maintainable.
The contention of the plaintiffs is that
the lease is invalid as it did not conform to the provisions of s. 117
of the Transfer of Property Act and therefore they arc entitled
to evict the appellants.
The trial court decreed the plaintiff's suit
but the first Appellate Court rcver>cd the decree of
the
trial
coun and dismissed it.
It followed the earlier rulings
of the
Patna High Coun to the effect that if the main lea.,e is a lease
for agricultural purposes all sub-leases of portions of that leasehold should also he considered as agricultural leases despite the
fact that a particular sub-\e:isc may be that of a homestead only.
The plaintiffs took the matter in second appeal to the High Court
which was decided by a Full Bench which allowed the appeal as
mentioned earlier.
Two questions that arise for decision arc (I ) was the High
Court right in holding that the lease in favour of the appellants
is governed by s. 117 of the Transfer of Property Act and (2)
whether in view of the uniform view taken in the earlier
decisions during a period of nearly 55 years the High Court was justified in reopening the question.
Till the decision under appeal High Courts of Patna
and
Calcutta proceeded on the basis that if the main lease is governed
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NIRSHI DHOBIN v. s. K. MUKHERJI (Hegde, J.)
471
by the provisions of the Act and consequently taken out of
the scope of the Transfer of Property Act th7n ~t must be held
that all sub-leases of portions of the properttes rncluded m the
main lease are agricultural leases; otherwise the main lease would
cease to be a purely agriculiural lease as it must be held
to
relate to both agricultural and non-agricultural lands.
We agree
with the Full Bench that the ratio of these decisions is open to
question. If the legal position had not been firmly settled ~y .a
lono- chain of decisions commencing from 1903 onwards, Lt ts
likely that we would have concurred with the view taken by the
Full Bench.
But if we do so we would be unsettling a settled
view of the law on the basis of which various rights must have
been created, transactions entered into and titles founded.
The
rule laid down in the earlier decisions was never departed from
in the past.
The Act was amended a number of times but yet
the legislature did not think it necessary to alter or modify the
said rule.
Different considerations would have arisen if the
disputed interpretation related to a penal provision or the same
is detrimental to public interest or causes public inconvenience.
Law is not always logic.
It is a part of life and more so in a
democratic set up.
In law finality is
of utmost importance.
Unless so required in public interest, questions of law firmly settled by a long course of ·decisions should not ordinarily be disturbed and if is all the more so in the case of an interpretation
affecting property rights.
In the instant case, there were no
compelling reasons for the High Court to depart from the rule
laid down earlier.
The decision of the High Court, if allowed
to stand is bound to disturb numerous transactions.
It is solely
on that ground we propose to set aside that decision.
Now we
shall refer to the decided cases on the point.
The earliest decision on the point is Babu Ram Roy v. Mahendra Nath Samanta(').
The material facts of that case are
similar to the facts of this case.
The inain lease in that case
consisted of an agricultural lands as well as a homestead.
The
homestead was separately given on sub-lease by the main lessee
but no registered lease deed was taken.
Subsequently the main
lessee sued for possession of the homestead.
It was contended
on his behalf that the lease in favour of the sub-lessee being a
lease of non-agricultural property, the same is invalid as it was
not given under a registered lease deed and hence he was entitled
to a decree directing the ejectment of the defendants.
The High
Court rejected the plaintiff's claim holding that in order to maintain a suit for ejecttnent a notice under s. 49 cl. 6, Bengal Tenancy
Act was necessary and that notice had to be served in accordance with the rules framed nnder that Act.
No notice having
been given under that provision, the suit was held to be non-
(t) Vlll, C.W.N. 454.
472
SUPREME COURT REPORTS
( 1969] I S.C.R.
maintainable by Mitra J. His view was aflim1ed by a Division
Bench consisting of Maclean C.J. and Pargiter J.
The above
decision was aflinncd by another Division Bench of the Calcutta
High Court in Abdul Karim Parwari v. Abdul Ralzaman (').
The
same view was taken by the said High Court in Krishna
Kall ta
Ghoslz v.
ladu Kasya(2)
and in Kadrut111/a and Ors.
v.
Upendra Kumar Chowdhury(').
The decision in Arun Kumar
Sinlza and Ors v. Durga Charan Basu(') is of special importance.
Tl!at ca-;e was decided by a Division Bench consisting of B. K.
Muk.herjea J. who later became the Judge as well as the Chief
Justice of this Court and Roxburgh J.
There the learned Judges
doubted the correcu1ess of the earlier decisions but yet were of
the opinion that public interest required that the interpretation
placed on the provision of law hy a long series
of consistent
decisions should not be departed.
This what the learned Judges
obser•ed in that case.
"But
the
principle
was never dissented from, that
in a case of this de-scription. the question wln:ther the
. tenancy is governed by the Bengal Tenancy Act or the
Transfer of Property Act, would depend on the nature
of the original tenancy, and not on the character of the
parcel included in the sub-tenancy.
The learned
advocate who appears for the appellants has subjected
the-sc decisions to a good deal of criticism.
Had the
matter been res integra, we might have some hesitation
in accepting the view cnw1ciated
in
them.
In
the
Bengal Tenancy Act, the raiyat is defined to be a person
who-acquires land primarily for purposes of cultivation;
unless the letting was
for purposes of agriculture
the tenancy would
not be
governed
by
the
Bengal Tenancy Act even if the superior interest wa~
vested in the holding of the tenure to which the Bengal
Tenancy Act was applicable.
We do not think also
that any real anomaly would arise If as between a raiyat
and his sublcssec the rights were governed by the Transfer of Property Act.
Mr. Das who appears for the respondents has contended that difficulties would arise in
enforcing
the
provisions of ch. 14 Ben. Ten. Act.
What he says is,
that the purchaser of a raiyati holding has the right to
annul
all
sub-tenancies
which
arc
incumbrances
under s. 161, Ben. Ten. Act; but if the raiyat has created a non-agricultural tenancy in respect of a portion
of his lands for a fixed period which is governed by the
11}
15 Cal. Law Journ:il 672.
()) Al.R. 1925 Cal. 201.
(2) 19 Cal. W.N. 9f.1.
f4) A.l.R. 1941 Cal. 606.
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N!RSHI DHOBIN v. s. K. MUKHERJI (Hegde, J.)
4 7 3
Transfer of Property Act, to allow
a purchaser to
annul such
sub-tenancies would be to entitle him to
cro against the provisions of the Transfer of Property
Act.
We do not think that there is any substance in
this contention.
It is not necessary that the incumbrances which can be annulled under s. 167 Ben. Ten ..
Act must be incumbrances created under that Act.
A
mortgage is certainly an incumbrance which is created·
under the Transfer of Property Act but it can never be
suggested that because it is governed by the Transfer
of Property Act, 1t cannot be annulled by a purchaser
who purchased the holding at a sale in execution of
a rent decree under Chap. 14, Ben. Ten. Act.
The difficulty however is created by the way
in·
which the expression "under-Raiyat" has been defined
in s. 4 Ben. Ten. Act.
An under-raiyat has been defined to be a tenant who holds immediately or mediately
under a raiyat.
It is not stated here, as in the cMe of
a raiyat, that he must hold also for purposes of cultivation.
It may be argued that this must be the implication, for the provisions relating to under raiyats
which are contained in Chap. 7 Ben. Ten. Act are·
appropriate only to this character as an
agricultural·
tenant.
It cannot be denied however that the wording
of S. 4, clause ( 3) Ben. Ten. Act is very wide, and
when the word has been interpreted in one way for a
period of nearly 40 years. without any dissension whatever, we think that we should not be justified in upsetting the Jong series of decisions.
It is significant to
note that considerable changes have been introduced in·
the Bengal Tenancy Act in recent years but the Legislature which must be presumed to be aware of the law
as· laid down in the abovementioned decisions did not
consider it necessary to make any changes in this
respect."
It was not denied by the learned counsel for the respondents
that the pl1inciple enunciated in the abovementioned decisions.
was consistently followed by the Calcutta High Court even up-todate.
Hence it is not necessary to refer to the other decisions .
of that court.
The Patna High Court consistently followed the decisions
of the Calcutta High Court. In Mian Ahir and Ors v. Paramhans
Pathak (1) while considering a case similar to the present case,
the rule laid down in Babu Ram Roy's case was followed.
So·
also in Shrikishun Lal v. Harihar Sah and another('). The law
(1) A.LR. 1939 Pat 409.
(2) A.J.R. (36) 1949 Pat. 444.
•174
St'PRO!E COURT REPORTS
(1969] I s C.R.
laid down in those decisions was accepted as correct
till
the
A
decision of the Full Bench in the present case.
At page 154 of Craies on Statute Law (6th Edition) it 1s
observed :
"In 1958 Lord Evershed M. R. said : 'There is well·
established authority for the view that a
decision
of
long standing, on the basis of which many persons will
in the course of time have arranged their affairs, should
not lightly be disturbed by a superior coun not strictly
bound itself by the decision." Again at page 155, it is
observed : 'Earlier in Murgan v. Crawslwy, Lord West·
bury had thus stated the rule : After explaining that it
was unnecessary to examine the interest of a galec in
iron ore mines, because supposing it to be regarded as
a tenement and not merely as an incorporeal right. I
should still arrive at the conclusion that we must bow to
the urtiform interpretation whiCh has been put upon the
statute of Elizabeth and must not attempt to disturb
the exposition it has received.
If we find a uniform
interpretation of a statute upon a question materially
affecting property <Uld perpetually recurring and which
has been adhered to without intcrmption it would be
impossible for us to introduce the precedent of dis·
regarding that interpretation. Disagreeing with it would
thereby shaking rights and titles which have been found·
ed through so many years upon the conviction
that
that interpretation is the legal and proper one and
is
one which will not be departed from.
In that
the
House of Lords decided that iron mines and all other
mines except coal mines were, under the Statute of
Elizabeth, exempt from liability to the poor rate.
The
statute mentioned coal mines only, and a long cour~e
of decision had established that the
rule
cxprcssio
unius est exclusio alterius applied to
the enactment."
(that decision is reported in 1871 L.R. 5 H.L. 304).
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In Harding v. Howe//(') Lord Fitzgerald speaking for
the
Privy Council while dealing with the interpretation of a proviG
sion in a statute observed :
"Their
Lordships
do
not intend in the least to
question the principle which governs the construction
and effect of that statute as now long established by
decided cases.
It has been over and again said that
'so many titles stand on it that it must not be shaken'
II
and in that their Lordships con.cur."
(I) 14 A.C. 307.
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NIRSHI DHOBIN v. s. K. MUKHERJI (Hegde, J.)
475
In Pugh v. Golden Valley Railway Co.('). Thesiger L. J.
observed:
"And the case is · in principle a distinct authority for the proposition that in such circu~stan~es as
those which exist in the present case, the diversion. of
a river is unjustifiable.
Viewed simply as the declSlon
of a Court of first instance, the authority of this case,
notwithstanding the respect due to the Judges who
decided it, is not -binding upon us; but, viewed in its
character and practical results, it is one of a class of
decisions which acquire a weight and effect beyond
that which attaches to the relative position of the Court
from which they proceed.
It constitutes an authority
which, after it has stood for so long a period unchallenged, should not, in the interests of public convenience,
and having regard to the protection of private rights,
be overruled by this Court except upon very special
considerations.
For twelve years and upwards the c.ase
has continued unshaken by any judicial decision or
criticism as an authoritative exposition of the meaning
of sect. 16 of the Railways Clauses Consolidation Act,
1845, in respectof the matter here in dispute.
During
such period hundreds of Special Acts of Parliament
have been passed sanctioning the construction of lines
of railway and the consequent interference with private
rights, and incorporating for that puroose the provisions of the General Act.
Promoters-must have sought
their powers, landowners must have
reguliited
their
course of action, and parliamentary committees must
have given their sanction to the projects submitted to
them upon the faith and footing of a limit to the
powers sought and conceded being found in the provisions of the general Act as interpreted ;from time to
time by judicial decisions. If so, it is to be presumed
that the limit put upon the powers of a railway company in. ~egard to the diversion of roads and rivers by
the dec1s10n of the Court of Kueens' Bench in Reg. v.
Wycombe Railway Company must have exercised a
material influence upon the relations of persons owing
land proposed to be affected by special railway legislation and the promoters of that le_i;:islation."
In Murphy v. Deichler and Ors( 2 ). Lord Loreburn L. C. speaking for the House of Lords observed:
H
"I think this case falls within the rule that it is
not necessary or advisable to disturb a fixed practice
(!) IS Ch. Division 330.
(2) [1909] A.C 446
476
St.:PREME COURT REPORTS
[ 1969] 1 SC.R ..
whic~ has been long observed in regard to the disposition of property, even though it IIiay have been disapproved at times by individual judges, where no real
point of principle has been violat~."
The Full Bench was of the view that the rule laid down in
Babu Ram Roy's case and the decisions following it arc clearly
wrong.
Hence even though that rule held the field for about
55 years, there is no justification for sustaining it.
The Full
Bench was of the opinion that in all cases where the terms of
the statute arc clear cvc'Il a long and uniform course of judicial
interpretation of it may be overruled if it is contrary to
the
meaning of the enactment.
It accepted that to be the c«rrect
position in law and that rule is unqualified.
fa support thereof
they relied on the Full Bench decision of the
Allahabad High
Court in La/111 Sin!?h. v. Gur Narain and Ors.(') and the decision
of the Privy Council in Tricomdas Cooverji Blzoja v. Sri Gopinath
Jiu Thakur('). The Full Bench decision of the Allahabad High
Coun relied on the Privy Council decision in Tricomdas Cooverji
/Jhoja's case and the Privy Council in its turn followed the decision in Arthur Jolin Pate
v.
W. C. Pate and Ors(3 ).
In
the
Allahabad case the contention of the defendant was that under
Hindu Law as settled by decisions delivery of possession wa~
absolutely necessary for 1hc completion of a gift.
Their Lordships held that whatever might have hccn the strict law prior
to the passing of the Transfer of Property Act, it must now be
held that gift of immovable property can be validly effected by
registered instruments signed either by or on behalf of the donor
and attested by at lca~t two witnesses and nothing further is
necessary to effectuate the transfer. It is in that context their
Lordships observed that where the terms of the statute or ordinance are clear then even a long and uniform course of judicial
interpretation of it may be overruled, if it is contrary
to
the
clear meaining of the enactment.
In fact in that case the learned
Judges did not depart from the rule laid down in the earlier
cases as regards the scope of s. 123 of the Transfer of Property
Act.
They held that the earlier decisions under the Hindu Law
cannot be followed in view of the change in the law effected by
s. 123 of the Transfer of Property Act.
In 'Tricomdas Cooverjee's(') case, the Privy Council did not
depart from any well established principle of law.
In fact their
Lordships in the course of the Judgment referred to certain conilict of decisions on the point under consideration and in that
context they happened to make the observations to which we have
referred while dealing with the Allahabad decision. As mentioned
(I) A.T.R 1912 All. 467.
(.~) A.LR. 1916 P.C. 182.
()) [1915JA.C. llOO.
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earlier the decision of the Privy Council which was followed by
the Full Bench of the Allahabad High Court relied on the
decision in Pate v. Pate('). That decision if we may say so with
all respect explains the true legal position. In that case while
dealing with the various .decisions cited before them their LordB
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shiPs observed :
"With all respect to the learned judges who so read the
Ordinance in 18 71, their Lordships not only think
that their decision was erroneous, but also that even
after the interval of fortyfour years it ought to be overruled.
The present is not one of those cases in which
inveterate error is left undisturbed because titles and
transactions have been founded on it which it would be
unjust to disturb." (emphasis supplied).
From these observations it is clear that the rule that where the
terms of a statute or ordinance are clear then even a long and
uniform course of judicial interpretation of it may be overruled,
if it is contrary to the clear meaning of the enactment is inapplicable to decisions on the basis of which titles and transactions
must have been founded.
For the reasons mentioned hereinbefore this appeal is allowed and the suit dismissed with costs of this Court.
E
G.C.
Appeal allowed.
(I) [1915) A.C. llOO.
Ll2 Sup. Cl/68-16