Case: Maktul Vs. Mst. Manbhari and Ors

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 aproval and as pertinent by Sir Shadi Lal when he delivered the judgment of the Board in 64 Ind App 250 : (AIR 1937 PC 233 ) (B). The learned judge has then added that "35 Ind App 206 (PC) (F), 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 35 Ind App 206 (PC) (F) would apply as much to the Hindu law as to the customary law of the Punjab. In our opinion, these observations make 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 ILR (1950) Punj 1 : (AIR 1949 EP 109) (FB) (E), 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 35 Ind App 206 (PC) (F) 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.9. 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 Halsburys Laws of England, Second Edition*:*Halsburys Vol. XIX, p. 257, para. 557:"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 dicisioon, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake".The same doctrine is thus explained in Corpus Juris Secundum*:*Corpus Juris Secundum, page 302, para 187.Corpus Juris Secundum, page 322, para 193."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, however, adds a rider that"previous decisions should not be followed to the extent that grievous wrong may result; and accordingly the courts ordinarly 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".10. In the present case it is difficult to say that the doctrine of stare decisis really applies because the 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 1950. Besides, in 1908, the Privy Council made emphatic observations in 35 Ind App 206 (PC) (F) 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 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 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 inapplicable and should present no obstacle in holding that the earlier cases of the Full Bench of the Punjab High Court were not correctly decided.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. In the present case it is difficult to say that the doctrine of stare decisis really applies because the 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 1950. Besides, in 1908, the Privy Council made emphatic observations in 35 Ind App 206 (PC) (F) 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 sinceIt 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 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 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 inapplicable and should present no obstacle in holding that the earlier cases of the Full Bench of the Punjab High Court were not correctly decided.