Case: Maktul Vs. Mst. Manbhari and Ors

1. If a Hindu governed by the customary law prevailing in the Punjab succeeds to his maternal grandfathers 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,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 1 to 9 for Rs. 5,000. Subsequently, on April 12, 1929, he sold the equity of redemption to the said mortgagee Shibba for Rs. 11,000. 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 fatherRespondents 1 to 9 disputed the appellants right to bring the present suit and urged that the alienation 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 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 appellants reversionary rights in the property after the death ofThe appellants 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 was confirmed by the learned trial judge. Respondents 1 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. 5,000 and so he ordered that the memorandum of appeal should be returned to respondents 1 to 9 enable them to file an appeal before the High Court. That is how respondents 1 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 in theDistrict 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 respondents1 to 9 and dismissed the appellants suit. In view of the fact that the point of law raised before the High Court was not free from doubt the High 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 S. 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.

Reasoning:
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.