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TMI Blog1961 (4) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the appellant a portion of the properties which were the subject-matter of the Zerpeshgi deed dated June 21, 1935, for a consideration of Rs. 1,600 Out of this amount, a sum of Rs. 1,100 was reserved with the purchaser for redemption of the Zerpeshgi, and the balance of Rs. 500 was paid in cash. It is recited in the deed of sale that a sum of Rs. 100 was required to effect repairs to the family dwelling house, a sum of Rs. 200 for purchasing two bulls for agricultural purposes, and a sum of Rs. 200 for repairing a well, which had been constructed by the deceased for user by the public and which was then in a ruined condition. It is to meet these expenses that Laung Kuer raised Rs. 500. After obtaining the sale deed, the appellant sought to redeem the Zerpeshgi, but the Zerpeshgidars refused to receive the amount and surrender possession of the properties. The appellant deposited the mortgage amount in court under s. 83 of the Transfer of Property Act and then instituted Title Suit No. 69 of 1944 for redemption. Meantime the reversioners, the respondents herein, had filed Title Suit No. 126 of 1943 for a declaration that the sale deed in favour the appellant was not binding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Judge declined to follow this decision and stated the reason thus: "Following. therefore, the settled practice of this Court as laid down in a number of decisions, the only course left open to us in the circumstances would be either to follow the previous Division Bench Ruling in preference to the later or to refer the case to a larger Bench for settling the position. In my opinion, however, the present case is not one in which it is desirable to refer this case to a larger Bench. Following, therefore, the authority of this Court in Dasrath Singh's case which completely covers the present case, it must be held that the courts below were in error in relying upon the decision in Lala Ram Asre Singh's case." In the result the learned Judge held that the sale deed in favour of the appellant dated June 17, 1943, was not binding on the reversioners. Rai, J., expressed the view that as the bona fides of the sale in favour of the appellant was questioned by the reversioners and as there had been no finding on that point by the Subordinate Judge, the matter might have to be remanded for a finding on that question, but that, as the sale deed was not supported by necessity, he agreed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the appellant himself acted bona fide was not challenged before the Subordinate Judge on appeal and the point is accordingly not open to the respondents. Dealing next with the points mentioned in the Order of the High Court dated November 27, 1956, the first question that arises for decision is whether a sale by a widow of properties which are the subject matter of a usufructuary mortgage is beyond her powers when the mortgagee cannot sue to recover the amount due on the mortgage. This has been answered in the affirmative by the learned Judges of the High Court on the strength of the decision in Dasrath Singh v. Damri Singh 8 Pat. L.T. 314; A.I.R. 1927 Pat. 219. There the last male holder, one Sitaram Singh, had created a usufructuary mortgage, and after his death the widow sold the property for the discharge of this debt and of certain other debts, and for meeting the marriage expenses of her daughter and grand-daughter. It was held by Das and Adami, JJ., that all these items of consideration were supported by necessity, but nevertheless the sale was not binding on the reversioners. Das, J., who delivered the judgment observed as follows "It is contended that under the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question, it was observed in Viraraju v. Venkataratnam (1861) 8 M.I.A. 529.:- "How exactly this obligation is to be carried out, whether by a mortgage. sale or other means, is not to be determined by strict rules or legal formulae, but must be left to the reasonable discretion of the party bound. In the absence of mala fides or extravagance, and so long as it is neither unfair in character nor unreasonable in extent, the Court will not scan too nicely the manner or the quantum of the alienation." 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 case. What has to be determined is whether the act is one which can be justified as that of a prudent owner managing his or her own properties. If the income 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 Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Appeal. 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 Buddha Singh v. Laltu Singh (1915) I.L.R. 37 All. 604, the Privy Council had occa- sion 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 (1881) I.L.R. 5 Mad. 291 and Chinnasami Pillai v. Kunju Pillai (1912) I.L.R. 35 Mad. 152, where decisions had been given based on the opinions expressed by Devananda Bliatta in the Smriti Chandrika, the Privy Council observed:- "Curiously enough there is no reference in either of the Madras judgments referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 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 Seshamma v. Venkata Narasimharao I.L.R. [1940] Mad. 454, 474, 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 Halsbury's 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 A.I.R 1955 Andhra 215, 217 it has been held by the Andhra High Court tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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