TMI Blog1958 (5) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, 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 father respondent 10. Respondents 1 to 9 disputed the appellant s right to bring the present suit and urged that the alienations 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 giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the only property that can be called ancestral property is property inherited by a person from his father, father s father or father s father s father. It is true that in Raja Chelikani Venkayyamma Garu v. Raja Chelikani Venkataraman ayyamma ((19O2) L.R. 29 I.A. 156.) the Privy Council had held that under Mitakshara law the two sons of a Hindu person s only daughter succeed on their mother s death to his estate jointly with benefit of survivorship as being joint ancestral estate. This decision had given rise to a conflict of judicial opinion in the High Courts of this country. But in Muhammad Husain Khan v. Babu Kishva Nandan Sahai ((1937) L.R. 64 I.A. 250.) this conflict was set at rest when the Privy Council held that under Hindu law a son does not acquire by birth an interest jointly with his father in the estate which the latter inherits from his maternal grandfather. The original text of the Mitakshara was considered and it was observed that the ancestral estate in which, under the Hindu law, a son acquires jointly with his father an interest by birth, must be confined to the property descending to the father from his male ancestor in the male line. Sir Shadi Lal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion rather on a priori considerations and the main basis for the decision appears to be that the property cannot lose its character of ancestral property merely because it has come through a female who succeeded her father in default of male heirs. Chatterji J. dissented from this approach. He observed that he could not recall any instance in which property derived from or through any female ancestor among Hindus had been decided to fall within the category of ancestral property under the customary law. He also pointed out that the statement of the learned author of the Digest on the Customary Law of the Punjab on this point did not support the majority view. Thus it would not be unreasonable to say that the majority decision in this case is not a decision on the proof of custom as such. The same point was again raised before a Full Bench of the High Court of Punjab in Musammat Attar Kaur v. Nikkoo ((1924) I.L.R. 5 Lah. 356). Sir Shadi Lal C. T. who delivered the principal judgment of the Full Bench conceded that there was a great deal to be said in favour of the proposition that, unless the land came to a person by descent from a lineal male ancestor in the male line, it sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maternal grandfather is not ancestral qua his descendants under the customary law of the Punjab. The learned judge also held that the two Privy Council decisions cited before the court had in effect overruled the earlier Full Bench decisions of the Punjab High Court. It is this last decision of the Full Bench which has been followed by the High Court in the present proceedings. The appellant contends that the high Court was in error in not following the earlier Full Bench decisions on this point and it is urged on his behalf that the decision of the last Full Bench in Narotam Chand s case (I.L.R. [1950] Pun. 1), should not be accepted as correct. We do not think that the appellant s contention is well-founded. So far as the statement of the customary law itself is concerned, Rattigan s Digest which is regarded as an authority on the subject, does not support the appellant s case. Inpara. 59 of the Digest of Civil Law for the Punjab chiefly based on the customary law it is stated that ancestral immoveable property is ordinarily inalienable (especially amongst Jats, residing in the Central Districts of the Punjab) except for necessity or with the consent of male descendants or, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the true position under the customary law. In our opinion, the view taken by this Full Bench is on the whole correct and must be confirmed. It would now be necessary to consider the two Privy Council decisions on which reliance has been placed by Mahajan J., as he then was, in support of his conclusion that they have overruled the earlier Full Bench decisions. In Attar Singh v. Thakar Singh((1908) L.R. 35 I.A. 206) the Privy Council was dealing with a suit by Hindu minors to set aside their father s deed of sale of the lands in suit to the defendants on the ground that they were ancestral. It was held that, as the plaintiffs claimed through their father as son and heir of Dhanna Singh, the onus was on them to show that the lands were not acquired by Dhanna Singh and, as that onus was not discharged, the lands must be deemed to be acquired properties of Dhaiina Singh and that deed could not be set aside. The parties to this litigation were governed by the customary law of the Punjab. In dealing with the character of the property in suit, Lord Collins who delivered the judgment of the Board observed that it is through father, as heir of the above-named Dhanna Singh, that the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 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 Halsbury s Laws of England(2nd Edn., Vol. XIX, P. 257, para. 557): Apart from any question as to the Courts being of coordinate 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 decision, 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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