Case: Jaisri Sahu Vs. Rajdewan Dubey And Others

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. 9. 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 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.In Buddah Singh v. Laltu Singh, ILR 37 All 605 : (AIR 1915 PC 70) 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, ILR 5 Mad 291 and Chinnasami Pillai v.Kunju Pillai, ILR 35 Mad 152 where decisions had been given based on the opinions expressed by Devananda Bhatta in the Smriti Chandrika, the Privy Council observed:- Curiously enough there is no reference in either of the Madras judgments referred to above to a previous decision (Parasara Bhattar v. Rangaraja Bhattar, ILR 2 Mad 202) of the same court to which Turner, 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 (of ILR All) .(at p. 77 of AIR) ). 10. Considering this question, a Full Bench of the Madras High Court observed in Seshamma v. Venkata Narasimharao, ILR 1940 Mad 454 at p. 474: (AIR 1940 Mad 356 at p. 362) (FB) : The Division Bench is the final Court of appeal in an Indian 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) (1884) 9 P.D. 96), Harrison v. Ridgiway ((1925) 133 LT 238), Ratkinsky v. Jacobs ((1929) 1 KB 24) and Phillips v. Copping ((1935) 1 K.B. 15). 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 of conflicting deadens, and it is therefore desirable that in case of difference of opinion, the question should 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 ILR (1940) Mad 454: (AIR 1940 Mad 356) (FB) 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 Halsburys Laws of England third edition, Vol. 22, para, 1687, pp. 799-800:- The court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam 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 (S) AIR 1955 Andhra 215 at p. 217 it has been held 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 D. D. Bilimoria v. Central Bank of India, Ltd., Bombay, AIR 1943 Nag 340. 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 hearing cases would refer the matter for the decision of a Full Court.

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

Explanation:
1[ds]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 Pirthi Dubey the relatives of Laung 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 caseIf 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 law6. Judged by these principles, 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 be determined on the facts of each case, there being no absolute prohibition against her effecting a sale in a proper caseincome 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 Singhs case, 8 Pat LT 314 : AIR 1927 Pat. 219   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 wrongIn our judgment these observations correctly state the position in law8. 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 other 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 the 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 AppealThe 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 hearing cases would refer the matter for the decision of a Full Court.