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
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 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 5000
Subsequently on April 12 1929 he sold the equity of redemption to the said mortgagee Shibba for Rs 11000
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 5000 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 certificate from the High Court under the first part of section 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 vs 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 vs 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 LR 29 IA 156
2 1937 LR 64 IA 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 vs Musammat Thakri 1 it was held by the Full Bench Roe section 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 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 PR 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 vs 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 vs Mst
Durga Devi 3
In this 1 Lah 356
2 1895 30 PR 124
3 ILR 1105 case the main question which arose for decision was under article 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 article 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 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 ILR 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 Bench decision in Narotam Chand s case 4 is 1 1895 30 PR 124
2 Lah
3 1937 LR 64 IA 250
4 ILR 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 vs 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 LR 64 IA 250
2 1908 LR 35 IA 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 case2 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 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 England4 1 1937 LR 64 IA 250
2 1908 LR 35 IA 206
3 ILR 4 2nd Edn Vol
XIX P 257 para
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 Secundum1  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
P 322 para
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 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 LR 35 IA 2o6


Summary:
One Chain Sukh died issueless
His interest as the occupancy tenant of the land in dispute therefore devolved upon his widow Smt
Sukhia in accordance with section 35 of the United Provinces Tenancy Act 1939
A couple of years after the death of Chain Sukh Sukhia remarried Gopal Singh in Karwa form according to the caste custom prior to the date of vesting ie 171952 under the UP Zamindari Abolition and Land Reforms Act 1950
A son Chartder Pal respondent No 4 was born to Sukhia
Sukhia continued to remain in possession of this holding till her death in 1965
The appellant is the sister of deceased Chain Sukh
A dispute arose between the appellant and Chander Pal during the consolidation proceedings under the UP Consolidation of Land Holdings Act each of them claiming interest to the exclusion of the other
The Consolidation Officer held that Smt
Sukhia on her remarriage lost her interest in the holding and by virtue of section 171 of the Zamindari Aboli tion Act Smt
Mainia being the sister of Chain Sukh inher ited the interest in the holding
The Settlement Officer Consolidation dismissed Chander Pal s appeal
The Settle ment Officer however held that a legal marriage of Smt
Sukhia with Gopal Singh was not proved that Smt
Sukhia cultivated the land throughout as the widow of Chain Sukh and that after her death the appellant inherrited it
In revision the Deputy Director Consolidation held that Smt
Sukhia s Karva with Gopal Singh not being proved to he a legal marriage the succession would he governed on the basis that she was Chain Sukh s widow at the time of her death
Chander Pal filed a writ under Article 226 and the High Court 686 while allowing the petition held that the consolidation authorities erred in deciding the matter on the basis that Smt
Sukhia s marriage with Gopal Singh was not proved to he legal
The High Court observed that in view of appellant Smt
Mainia s clear admission that Smt
Sukhia was remarried to Gopal Singh in Karwa form and that they had been living together as husband and wife for several years no further proof of legality of the remarriage was necessary
The High Court further held that the effect of the provi sions of the Tenancy Act was that her interest in the hold ing after her remarriage was in her own right and not as widow of Chain Sukh and therefore by virtue of section 1802 of the Tenancy Act she acquired an independent right which did not devolve upon her death to Chain Sukh s sister but to her son Chander Pal born to her after her remarriage with Gopal Singh
Before this Court it was contended on behalf of the appellant that Smt
Sukhia s interest in the holding contin ued till her death only as widow of Chain Sukh since her initial interest in the holding was by devolution as widow of Chain Sukh under section 35 of the Tenancy Act that Smt
Sukhia s remarriage with Gopal Singh was not proved that since the possession of Smt
Sukhia was recorded throughout as widow of Chain Sukh there was no occasion for attracting the provisions contained in section 1802 of the Tenancy Act and that on her death in 1965 the succession was gov erned by section 172 read with section 171 of the Zamindari Abolition Act
In reply it was contended that remarriage of Smt
Sukhia prior to the date of vesting ie 17 1952 under the UP Zamindari Abolition and Land Reforms Act 1950 being the admitted case of the appellant Smt
Mainia herself the appellant could not now he permitted to take contrary stand that the possession of Smt
Sukhia in the holding at the time of her death not being as a widow of Chain Sikh but in her own right the succession was governed not by section 172 but by section 174 of the Zamindari Abolition Act under which Chartder Pal inherited Smt
Suk hia s interest in the holding as her son
Dismissing the appeal this Court HELD 1 The case of the appellant before the Consoli dation Officer was put up on the basis of Smt
Sukhia being remarried to Gopal Singh and Chander Pal being the son born to Smt
Sukhia after her remarriage could not claim to be a legal heir of Smt
Sukhia s first husband Chain Sukh
The High Court was therefore
right in taking the view that the matter must he decided on that basis
691F G 2 The mere fact of Smt
Sukhia s name being shown in the 687 family register as widow of Chain Sukh till the time of her death in 1965 did not have the effect of continuing Smt
Sukhia s status as widow of Chain Sukh even after she had become the wife of Gopal Singh as a result of her remar riage
691H 692A BadriPrasad vs Deputy Director Consolidation AIR 1978SC 1557 referred to
3 Section 36 of the Tenancy Act which clearly pro vides for succession to a female tenant holding an interest inherited as a widow in the case of her marriage thereafter or in other words remarriage was attracted in the present case
692F 4 According to section 36 on the remarriage of Smt
Sukhia with Gopal Singh the interest devolved in accordance with the order of succession laid down in section 35 on the heirs of the last male descendant that is Chain Sukh but appellant Smt
Mainia married sister of Chain Sukh not being one of the heirs of Chain Sukh according to section 35 of the Tenancy Act the interest did not devolve on Smt
Mainia
5 The continued possession of Smt
Sukhia after her remarriage attracted section 180 of the Tenancy Act
693D 6 Admittedly no suit as contemplated by sub section 2 of section 180 of the Tenancy Act was brought at any time against Smt
Sukhia and the prescribed period of limi tation for such a suit expired prior to her death in 1965
Sub section 2 of section 180 of the Tenancy Act was therefore clearly attracted and Smt
Sukhia had become a hereditary tenant by virtue of that section with the further consequences flowing therefrom
694A B 7 The legal consequence flowing from sections 36 and 180 of the UP Tenancy Act is enough to indicate that the character of widow s possession after her remarriage altered by operation of law and any further animus is not required to bring about the effect of the statutory provisions which ensue on expiry of the limitation prescribed for a suit to evict her
694G Ram Jivan vs Smt
Phoola dead by Lrs  Jagarnath and others vs Deputy Director of Consolida tion Gorakhpur and others 1976 AWC 654 and Chhiddoo Singh vs Deputy Director of Consolidation  others
 1976 AWC 809 distinguished