TMI Blog1961 (4) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... Aiyyar, T. L. Venkatarama, Gajendragadkar, P. B.,Wanchoo, K. N. And Gupta, K. C. Das,JJ. A. V. Viswanatha Sastri and R. C. Prasad, for the appellant. B. K. Garg, M. K. Ramamurthi, S. C. Agarwal, and D. P. Singh, for respondents Nos. 1 to 4. JUDGMENT These are appeal. against the judgment of the High Court of Patna in Second Appeals Nos. 2155 and 2156 of 1948 on certificates granted by the High Court under Art. 133(1)(c) of the Constitution. The facts leading to this litigation lie in a narrow compass. One Prithi Dubey died on July 14, 1932, leaving him surviving, his widow Laung Kuer, who succeeded as heir to his estate. For the purpose of discharging debts due by the deceased Laung Kuer executed on June 21, 1935, a Zerpeshgi deed in favour of two persons, Rajdewan Dubey and Kailash Dabey, who were also the next reversioners, for a sum of Rs. 1,100. It is not in dispute that this deed is binding on the reversioners. On June 17, 1943, Laung Kuer sold 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 purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the appellant was not binding on the reversioners. Misra, J., who delivered the leading judgment did not disagree with the finding of the courts below that all the four items of consideration were supported by necessity. Indeed, being a finding of fact, it would be binding on the court in Second Appeal. He, however, held, following the decision in Dasrath Singh v. Damri Singh 8 Pat. L.T. 314; A.I.R. 1927 Pat. 219) that a widow cannot by selling properties subject to usufructuary mortgage jeopardise the right of the reversioners to redeem, and that, therefore, the sale would not be binding on them. A different view was taken in Lala Ram Asre Singh v. Ambica Lal 1i Pat. L.T. 6; A.I.R. 1929 Pat. 216. 563, where it was held that a widow was not debarred from selling properties subject to mortgage where there was necessity for it merely by reason of the fact that they were subject to usufructuary mortgage which contained no personal covenant to pay. But the learned 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 circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 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 Prithi Dubey the relatives of Lawan 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 case, and that is what the District Munsif himself observes with reference to this aspect: "But in the present suit I have got to consider the interest of Jaisri Sahu who has in good faith already paid Rs. 500 to the Mostt. and has deposited the balance of Rs. 1,100 in court for the redemption of the Zarpeshgi." This finding 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eason that it has been held that when Crown takes the property by escheat it takes, it free from any alienation made by the widow of the last male holder which is not valid under the Hindu law, vide: Collector of Masulipatam v. Cavaly Venkata (1861) 8 M.I.A. 529. Where, however, there is necessity for a transfer, the restriction imposed by Hindu law on her power to alienate ceases to operate, and the widow as owner has got the fullest discretion to decide what form the alienation should assume. Her powers in this regard are, as held in a series of decisions beginning with Hanooman Persaud v. Mussamat Ba- booee (1856) 6 M. I. A. 393, those of the manager of an infant's estate or the manager of a joint Hindu family. In Venkaji v. Vishnu (1894) 18 Bom. 534, 536 it Was observed that- "A widow like a manager of the family, must be allowed a reasonable latitude in the exercise of her powers, provided. she acts fairly to her expectant heirs'." And more recently, discussing this 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l off a part of the estate." In our judgment these observations correctly state the position in law. It will be noticed that Das, J., delivered the judgment in both Dasrath Singh's case 8 Pat. L.T. 314; A.I.R. 1927 Pat. 219 and Lala Ram Asre Singh's case 11 Pat. L.T. 6; A.I.R. 1929 Pat. 216 and that the decision in Dasrath Singh's case 8 Pat. L.T. 314; A.I.R. 1927 Pat. 219 is not referred to in the judgment in Lala Ram Asre Singh's case 11 Pat. L.T. 6; A.I.R. 1929 Pat. 216. 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 Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 impro- priety 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 decisions, 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 t ..... 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