Maktul vs Mst. Manbhari and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 150 of 1955

Decision Date: 23 May, 1958

Coram: P.B. Gajendragadkar, A.K. Sarkar

The case titled Maktul versus Mst. Manbhari and Others was decided on 23 May 1958 by the Supreme Court of India. The judgment was authored by Justice P.B. Gajendragadkar, who sat with Justice A.K. Sarkar and Justice K. Subbarao. The petitioner in the proceeding was Maktul and the respondents were Mst. Manbhari together with several other parties. The official citation of the decision is reported in the 1958 All India Reporter at page 918 and in the 1959 Supreme Court Reports at page 1099. The dispute concerned the application of customary law in Punjab relating to inheritance by a Hindu male from his maternal grandfather and whether such inherited property would be treated as ancestral property with respect to the male’s own sons. The Court referred to earlier decisions such as Narotam Chand v. Mst. Durga Devi reported in the Indian Law Reports (Punjab) in 1950, which it approved, and to Lehna v. Musammat Thakyi (1895) and Musammat Attar Kaur v. Nikkoo (1924), which it did not approve. The Court also observed that the doctrine of stare decisis is not an absolute rule; it may be set aside when a prior decision is manifestly erroneous and its reversal does not disturb any existing titles, contracts, or established commercial practices.

The substantive question before the Court was whether a Hindu who, under the prevailing custom in Punjab, succeeds to the estate of his maternal grandfather holds that property as ancestral for the benefit of his own sons. The appellant, identified as the son of a man called Sarup (who was respondent number ten), asserted that his father, upon the death of his mother Musammat Rajo, had inherited the suit properties from his maternal grandfather Moti. The father, on 22 March 1927, executed a registered mortgage deed in favour of an ancestor named Shibba, who represented respondents numbered one through nine, for a sum of five thousand rupees. Later, on 12 April 1929, the father sold the equity of redemption to the same mortgagee, Shibba, for eleven thousand rupees. The appellant filed Suit Number 145 of 1946 in the Sub‑Judge’s Court at Panipat, seeking a declaration that the mortgage and subsequent sale did not affect his reversionary rights because, according to him, the transactions were made without consideration and lacked any legal necessity. He contended that his family was governed by Punjab custom, which treated the disputed property as ancestral, thereby granting him the right to challenge any alienation by his father, respondent ten. Respondents numbered one through nine opposed the appellant’s claim, arguing that the alienations were made for proper consideration and legal necessity. Both parties agreed, however, that the custom of Punjab applied to the parties. The trial judge concluded that the property was indeed ancestral with respect to the appellant and that the alienations were not made for consideration or legal necessity, but held that the appellant was not alive when the mortgage deed was executed and therefore could not contest it. Consequently, the appellant received a declaration that the sale did not bind his future reversionary rights after the death of respondent ten, while his claim regarding the mortgage was dismissed. The respondents appealed this decree before the District Judge at Karnal, asserting that the suit should have been considered abandoned due to the death of a defendant during the pendency of the case.

Both parties sought to bring the present suit, and the appellant claimed that the alienations made by respondent ten were without consideration and lacked any legal necessity. Both sides, however, agreed that respondent ten and the appellant were subject to the custom prevailing in the Punjab. The learned trial judge found that, as to the appellant, the property in dispute qualified as ancestral, and that the alleged alienations were not carried out for consideration or legal necessity. Nevertheless, the trial judge observed that the appellant had not been born at the time the mortgage deed was executed, and consequently he could not contest that deed. Accordingly, the trial court granted the appellant a declaration stating that the disputed sale did not affect his reversionary rights in the property after respondent ten’s death, while dismissing his claim regarding the mortgage. Respondents one to nine appealed this decree to the District Judge at Karnal, asserting that the suit should have been deemed abated in the trial court because one of the defendants died before the trial judge rendered his decision. The District Judge rejected this argument, but he set aside the decree and ordered the suit to be remanded for substitution of the legal representatives of the deceased defendant, Ram Kala. After the remand, the legal representatives of Ram Kala were entered on the record, and the decree originally passed by the trial court was restored, as confirmed by the learned trial judge. Respondents one to nine again contested this decree by filing an appeal before the same District Judge at Karnal. The District Judge held that the value of the suit’s subject‑matter exceeded Rs. 5,000, and therefore directed that the memorandum of appeal be returned to respondents one to nine so that they could seek leave to appeal before the High Court. Respondents one to nine then pursued their appeal in the High Court of Punjab. The High Court observed that the appeal had indeed been properly presented to the District Court; however, it chose not to require the respondents to return to the District Court, instead condoning the delay in filing the appeal and proceeding to consider the appeal on its merits. The High Court concluded that the property inherited by respondent ten did not constitute ancestral property as to the appellant, and consequently allowed the appeal filed by respondents one to nine, dismissing the appellant’s suit. Noting that the legal question presented before it was not free from doubt, the High Court ordered that each party bear its own costs throughout the proceedings. Subsequently, the appellant obtained a certificate from the High Court under the first part of Section 110 of the Code of Civil Procedure, and it is on the basis of this certificate that the present appeal has been brought before this Court.

In this appeal the Court was asked to determine whether the immovable property that is the subject of the suit may be described as ancestral property in relation to the appellant and respondent 10. Under Hindu law the term ancestral property is confined strictly to property that a person inherits from his father, his paternal grandfather or his paternal great‑grandfather. The decision rendered in Raja Chelikani Venkayyamma Garu v. Raja Chelikani Venkataraman Ayyamma (1) had earlier held, for the Mitakshara school, that the two sons of a Hindu man’s only daughter would, upon the daughter’s death, succeed jointly to the estate with a right of survivorship, treating the estate as a joint ancestral one. That ruling generated a divergence of opinion among the various High Courts of the country. The conflict was finally resolved by the Privy Council in Muhammad Husain Khan v. Babu Kishva Nandan Sahai (2), where the Council observed that, according to Hindu law, a son does not acquire by birth a joint interest with his father in the estate inherited by the father from his maternal grandfather. The Council examined the original Mitakshara text and concluded that the ancestral estate, in which a son gains a birth‑right interest together with his father, must be limited to property that descends to the father through a male line from a male ancestor. Sir Shadi Lal, delivering the judgment of the Board, explained that the earlier Privy Council decision in Raja Chelikani Venkayyamma Garu’s case (1) had expressly avoided expressing any opinion on the abstract question of whether property inherited by a daughter’s son from his maternal grandfather qualifies as ancestral property in the technical sense of a birth‑right joint interest. He further clarified that the phrase “ancestral property” used in that judgment was intended in its ordinary meaning, namely property that devolves upon a person from his ancestor, and not in the restricted Hindu‑law sense that implies acquisition of an interest at birth jointly with the father. Consequently there is no doubt that, under Hindu law, property received from a maternal grandfather does not constitute ancestral property for the son’s benefit.

The remaining issue for determination in the present appeal is the true position of such property under the customary law prevailing in Punjab. This question has been examined by Full Benches of the Punjab High Court on three separate occasions. The first of these decisions is recorded in Lehna v. Musammat Thakri (1), where the Full Bench — comprising Justices Roe S. J. and Rivaz J., with Justice Chatterji dissenting — held that in a village community where a daughter succeeds, either preferentially or in default of male heirs, she functions merely as a conduit to transmit property, which would have been ancestral had the descent been through a son, to her own sons and their descendants, without altering the essential character of the property despite her gender. Justice Chatterji, however, expressed the view that the term “ancestral” should be understood in a relative, not absolute, sense in customary law, and that for a property to be described as ancestral in the hands of a male owner it must be shown to have descended to him from a male ancestor, and, in the case of a claim by collaterals, from a common male ancestor shared by the claimant and the owner. The majority judgment indicated that the court did not find any evidential support for the alleged custom concerning the character of the property, and the matter was decided on a priori considerations, with the principal basis for the decision appearing to be the underlying principle that the property’s nature remains unchanged irrespective of the gender of the intermediate heir.

In the majority view, when a woman inherits land that would have been classified as ancestral property had the descent occurred through a son, she merely functions as a conduit, passing the land on to her sons and their descendants, and the mere fact that she is female does not alter the inherent character of the property. Justice Chatterji, however, asserted that the term “ancestral” must be understood in a relative sense rather than as a fixed or absolute concept under customary law; before any property held by a male can be described as ancestral, it must be shown that the land descended to him from a male ancestor, and in cases involving collateral claimants, that it descended from a male ancestor common to both the claimant and the holder. The majority judgment indicates that the judges did not find any evidence establishing the alleged custom concerning the character of such property, and instead addressed the issue on a priori considerations, basing their decision on the proposition that the property cannot lose its status as ancestral merely because it was transmitted through a female who succeeded her father in the absence of male heirs. Justice Chatterji dissented from this approach, noting that he could recall no instance in Hindu custom where property derived through a female ancestor had been held to fall within the category of ancestral property, and he further observed that the statement of the learned author of the Digest on the Customary Law of the Punjab did not support the majority’s position. Consequently, it would be reasonable to say that the majority decision was not a ruling grounded on proof of custom as such. The same question was later raised before a Full Bench of the High Court of Punjab in Musammat Attar Kaur v. Nikkoo, where the chief justice, Sir Shadi Lal C. J., delivered the principal judgment and conceded that there is considerable argument supporting the proposition that land should not be treated as ancestral unless it comes to a person by descent from a lineal male ancestor in the male line. He also acknowledged that the earlier Full Bench decision in Lehna did not rest on any evidentiary material regarding custom, but rather on what the judges regarded as the general principles of customary law and on the argument of ab inconvenienti. The chief justice further noted that the question of the character of such property under Hindu law remained doubtful, citing conflicting judicial opinions, and, given this conflict, he was not inclined to reopen the issue that had already been settled by the earlier Full Bench decision.

In stating his reasoning, the judge referred to the earlier Full Bench decision and, invoking the doctrine of stare decisis, affirmed that the majority ruling in Lehna’s case (2) must be regarded as good law. The judgment of Sir Shadi Lal C. J. made it clear, however, that on the merits he was not entirely satisfied with the earlier decision in Lehna’s case (2). The same question subsequently arose before another Full Bench of the High Court of Punjab in the matter of Narotam Chand v. Mst. Durga Devi (3). In that case the principal issue to be decided concerned article 2 of the Punjab Limitation (Custom) Act I of 1920. This provision deals with suits for possession of ancestral immovable property that has been alienated on the ground that the alienation is not binding on the plaintiff according to custom, and it sets out two periods of limitation depending on whether a declaratory decree is claimed. To determine whether the suit fell within the scope of article 2, the Full Bench was required to decide whether the property in dispute qualified as ancestral property. This inquiry revived the longstanding question of whether property derived from a maternal grandfather and held by a grandson, or property held by a daughter, could be described as ancestral. The matter was argued in detail before the Full Bench, with reference to earlier Full Bench decisions and to two Privy Council judgments that the Court intended to examine.

Mahajan J., who then delivered the principal judgment of the Full Bench, held that, under the customary law of the Punjab, property inherited by a Hindu from his maternal grandfather does not constitute ancestral property as it relates to his descendants. The learned judge further observed that the two Privy Council decisions cited before the Court effectively overruled the earlier Full Bench decisions of the Punjab High Court on this point. Consequently, the High Court, in the present proceedings, followed the later Full Bench decision. The appellant argued that the High Court erred in not adhering to the earlier Full Bench rulings and urged that the decision in Narotam Chand’s case (3) should not be accepted as correct. The Court found the appellant’s contention unconvincing. Regarding the substance of customary law, the Court noted that Rattigan’s Digest, an acknowledged authority, does not support the appellant’s position. Paragraph 59 of the Digest of Civil Law for the Punjab, which is chiefly based on customary law, states that ancestral immovable property is ordinarily inalienable—especially among Jats residing in the central districts of the Punjab—except when needed for necessity or with the consent of male descendants, or, in the case of a proprietor without a son, with the consent of his male collaterals. It further provides that a proprietor may alienate ancestral immovable property at his pleasure if, at the date of alienation, there exists neither a male descendant nor a male collateral. The author of the Digest then defines ancestral property as follows: “Ancestral property means, as regards sons, property inherited from a direct male lineal ancestor, and as regards collaterals, property inherited from a common ancestor.” Accordingly, the statement of customary law in the Punjab, as reflected in Rattigan, opposes the appellant’s argument. Finally, the Court observed that the first Full Bench decision in Lehna’s case (2) contains no discussion of any evidence of custom, and indeed no such evidence was presented before the judges, making it difficult to accept that decision.

According to the statement of customary law recorded by Rattigan, a Jat who lives in the central districts of the Punjab may alienate ancestral immoveable property only in cases of necessity or with the consent of his male descendants, or, where the proprietor has no son, with the consent of his male collaterals. The statement further provides that a proprietor may alienate such ancestral property at his own pleasure if, at the date of the alienation, neither a male descendant nor a male collateral exists. After setting out this rule, the author explains that “ancestral property” means, with respect to sons, property inherited from a direct male lineal ancestor, and with respect to collaterals, property inherited from a common ancestor. From this exposition it follows that the customary law in the Punjab, as reflected in Rattigan’s digest, does not support the appellant’s position.

Turning to the first Full Bench decision in Lehna’s case (1), the Court observed that no evidence of any custom was adduced before the learned judges, and there was no discussion of such evidence in the record. Consequently, it is difficult to regard that decision as expressing the judges’ considered view on the existence of a custom. This criticism mirrors the dissent expressed by Chatterji J., and the present Court concurs with the dissenting judgment. When the same question was reconsidered before the second Full Bench in Mst. Attar Kaur’s case (2), Sir Shadi Lal C.J. relied primarily on the doctrine of stare decisis because, at that time, the correct position under Hindu law regarding the nature of such property remained uncertain. That reliance has now become untenable, for the true position under Hindu law has been authoritatively set out by Sir Shadi Lal himself in the Privy Council decision in Muhammad Husain Khan’s case (3). Accordingly, the second Full Bench decision offers little guidance on the present issue.

The most recent Full Bench decision, rendered in Narotam Chand’s case (4), rests substantially on the view that, following the Privy Council’s ruling in Muhammad Husain Khan’s case (1), the two earlier Full Bench decisions must be treated as overruled. The judges of that Full Bench also examined the merits of the earlier judgments and articulated reasons why those decisions did not correctly ascertain the customary law. In the view of this Court, the reasoning adopted by the Narotam Chand Full Bench is largely sound and should be affirmed. The Court now finds it necessary to examine the two Privy Council decisions that Mahajan J., in his earlier judgment, relied upon to conclude that the earlier Full Bench decisions had been overruled. The analysis of those Privy Council decisions will be addressed in the following discussion.

In Singh v. Thakar Singh the Privy Council considered a suit brought by Hindu minors who sought to set aside a deed of sale executed by their father in favour of the defendants on the basis that the land in dispute was ancestral. The Court held that the plaintiffs, who claimed the land through their father as the son and heir of Dhanna Singh, bore the burden of proving that the land had not been acquired by Dhanna Singh. Because the plaintiffs failed to discharge that burden, the land was to be treated as property acquired by Dhanna Singh, and consequently the deed of sale could not be set aside. The parties to the litigation were governed by the customary law of the Punjab. While examining the nature of the property, 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 plaintiffs claimed, and unless the lands came to Dhanna Singh by descent from a lineal male ancestor in the male line, through whom the plaintiffs also in like manner claimed, they are not deemed ancestral in Hindu law.” This passage indicates that, according to the Board, only property that descends through a lineal male ancestor in the male line may be characterised as ancestral. The question of whether property inherited from a maternal grandfather qualifies as ancestral did not arise for decision in that case, but the language employed by Lord Collins to describe the true position under Hindu law with respect to ancestral property was emphatic, clear and unequivocal, and it was expressed while dealing with a matter governed by Punjabi custom. Sir Shadi Lal, delivering the judgment of the Board in Muhammad Husain Khan’s case (1), cited this statement with approval and described it as relevant. He further added that “Attar Singh’s case (2) related to property which came from male collaterals and not from the maternal grandfather and it was governed by the custom of the Punjab; but it was not suggested that the custom differed from the Hindu law on the issue before their Lordships.” The effect of these observations is that the test articulated in Attar Singh’s case (2) would apply equally to Hindu law as to the customary law of the Punjab. In our view, the observations made by Sir Shadi Lal merit respect and were correctly relied upon by Mahajan J., as he then was, in the last Full Bench decision (Narotam Chand’s case (3)) previously mentioned. It may be noted, however, that it is not strictly accurate to say that these observations overrule the earlier Full Bench decision of the Punjab High Court on the point.

In this case the Court observed that there could be no doubt that, had the relevant observations of Lord Collins in Attar Singh’s case (2) been taken into account by the second Full Bench, that Bench would likely have been reluctant to rely on the doctrine of stare decisis in support of its ultimate conclusion. The Court further noted that an additional issue remained for consideration: in view of the principle of stare decisis, whether it would be proper to declare that the view expressed by the High Court of Punjab as early as 1895 was erroneous. To address this question the Court set out the statement of the principle as recorded in Halsbury’s Laws of England (4), second edition, volume XIX, page 257, paragraph 557. That source explains that, apart from any question of courts having co‑ordinate jurisdiction, a decision that has been followed for a long period of time and that has been acted upon by persons in forming contracts, disposing of property, conducting general affairs, legal procedures or other matters will ordinarily be followed by courts of higher authority than the court that originally established the rule, even though the court before which the matter later arises might have reached a different conclusion if the question had originally been presented to it. However, the supreme appellate court is not barred from overruling a decision or a series of decisions that establish a doctrine plainly outside the statute and outside the common law, when no title or contract will be shaken, no person can complain, and no general course of dealing will be altered by the remedy of a mistake. The Court then turned to the exposition of the same doctrine in Corpus Juris Secundum (1), which states that under the rule of stare decisis a principle of law that has become settled by a series of decisions is generally binding on the courts and should be followed in similar cases. That rule is based on expediency and public policy and, although it is normally to be observed strictly, it is not universally applicable. Corpus Juris Secundum (2) adds a qualification that previous decisions should not be followed to the extent that grievous wrong may result; consequently, courts ordinarily will not adhere to a rule or principle established by earlier decisions when they are convinced that such rule is erroneous. The rule of stare decisis is therefore not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and prior decisions should not be followed if doing so would perpetuate error and cause grave injustice. Applying this analysis, the Court found it difficult to say that the doctrine of stare decisis truly applied in the present matter because the correctness of the first Full Bench decision had been challenged in the Punjab High Court from time to time and, in fact, that decision had been reversed in 1950.

In the course of subsequent litigation, the ruling of the first Full Bench of the Punjab High Court was repeatedly challenged before the Punjab High Court itself, and the same ruling was formally set aside in the year 1950. Moreover, in 1908 the Privy Council, in the case of Attar Singh reported in (1908) L.R. 35 I.A. 206, made forceful observations that seriously weakened the authority of the original Full Bench decision. Consequently, it is difficult to assert that the decision of that first Full Bench has been consistently adhered to by the legal community since its original pronouncement in 1895. The reversal of that decision does not, however, destabilise any existing title or contract. The sole effect of the original decision was to give the son of the individual who had inherited the property from his maternal grandfather a limited right to contest the alienation of that property. It is questionable whether that limited right can be described as a property right; rather, it merely presented the son with an option to either accept the transaction or to resist it. Because the Full Bench itself withdrew that limited right in its 1950 reversal, there can be no present claim that any pending proceedings are disturbed by that right. In the same vein, it is pertinent to consider that if the property inherited from the maternal grandfather is not classified as ancestral property, the titles of those who have acquired interests in that property become more secure. The Court is convinced that the first Full Bench’s decision is wholly untenable as an interpretation of the relevant custom. Accordingly, the Court holds that the doctrine of stare decisis does not apply in this context and should not impede the conclusion that the earlier Full Bench judgments of the Punjab High Court were wrongly decided. In the final analysis, the Court confirms the Punjab High Court’s finding that the land in dispute is not ancestral property and that the appellant lacks any legal basis to maintain the present suit. The appeal is therefore dismissed. The appellants are ordered to pay the respondent’s costs incurred in this Court, while each party shall bear its own costs in the lower courts. The appeal is dismissed.