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The debt was there; it was a subsisting debt, only the creditor was in possession of a part of the estate and was unable to recover it by instituting a suit in the civil courts. PRE |
But the result was that a considerable portion of the income was withdrawn from Basmati Kuer who had succeeded her husband. PRE |
It is well established that where a case of necessity exists, an heiress is not bound to borrow money, with the hope of paying it off before her death. PRE |
Nor is she bound to mortgage the estate, and thereby reduce her income for life. PRE |
She is at liberty, if she thinks fit, absolutely to sell off a part of the estate." PRE |
In our judgment these observations correctly state the position in law. Ratio |
It will be noticed that Das, J., deli (1) 8 Pat.L. T. 314; A.I.R. 1927 Pat.219, (2) ii Pat.L. T. 6; A.I.R. 1929 Pat.567 vered the judgment in both Dasrath Singh 's case (1) and Lala Ram Asre Singh 's case (2 ) and that the decision in Dasrath Singh 's case (1) is not referred to in the judgment in Lala Ram Asre Singh '... |
It has been found in this case that Laung Kuer had to raise a sum of Rs. 500 for necessary purposes. Ratio |
She could have done that by mortgaging other properties, but that would have reduced the income available for enjoyment by her. Ratio |
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. Ratio |
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. Ratio |
We are of opinion that this finding is not open to attack in Second Appeal. Ratio |
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. Ratio |
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. Ratio |
In Buddha Singh vs Laltu Singh (3), the Privy Council had occasion to discuss the procedure which should be adopted when a Bench of a High Court differs from the opinion given by a previous Bench. PRE |
After referring to Suraya Bhukta vs Lakhshminarasamma (4) and Chinnasami Pillai vs Kunju Pillai (5), 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... |
In that case the rule of the Smriti Chandrika was not accepted nor was the literal construction of the Mitakshara followed. Ratio |
It is usual in such cases where a difference of opinion arises in the same court to refer the point to a Full Bench, and the law provides for such contingencies. Ratio |
Had that course been followed their Lordships would probably have had more 'detailed reasoning as to the change of opinion on the part at least of one Judge." (pp. 622, 623). Ratio |
Considering this question, a Full Bench of the Madras High Court observed in Seshamma vs Venkata Narasimharao (1): "The Division Bench is the final Court of appeal in an Indian High Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division ... |
In England, where there is the Court of Appeal, Divisional Courts follow the decisions of other Divisional Courts on the grounds of judicial comity; see The Vera Cruz (No. 2) (2), Harrison vs Ridgway Ratkinsky vs Jacobs (4) and Phillips vs Copping If a Division Bench does not accept as correct the decision on a questio... |
If this course is not adopted, the courts subordinate to the High Court are left without guidance. PRE |
Apart from the impro priety of an appellate Bench refusing to regard itself bound by a previous decision on. PRE |
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." PRE |
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 (1) I.L.R. , 474.(2) (3) (4) (5) [1935] 1 K.B. 15.569 case of difference of opinion, the question should be authoritatively settled. Ratio |
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. Ratio |
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. Ratio |
The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later. Ratio |
In England the practice is, as noticed in the judgment in Seshamma vs Venkata Narasimharao (1), that the decision of a Court of Appeal is considered as a general rule to be binding on it. Ratio |
There are exceptions to it, and one of them is thus stated in Halsbury 's Laws of England, third edition, Vol. 22, para. Ratio |
1687, pp. 799, 800: "The court is not bound to follow a decision of its own if given per incuriam. Ratio |
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. Ratio |
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 vs Venkata Subbayya (2) it has been held by the Andhra High Court that under the circumstances aforesaid the Bench is free to adopt that view which is in accordance with justice a... |
The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. Ratio |
We have no doubt that when such situations arise, the Bench (1) I.L.R. , 474.(2) A.I.R 1955 Andhra 215, 217.(3) A.I. R. 570 hearing cases would refer the matter for the decision of a Full Court. Ratio |
In the result these appeals are allowed and the decrees passed by the trial court restored with costs throughout. RPC |
One set of hearing costs. RPC |
Appeals allowed. RPC |
Appeal No. 76 of 1959. FAC |
Appeal from the judgment and decree dated November 16, 1951, of the Madras High Court in Second Appeal No. 1656 of 1947. FAC |
T. V. R. Tatachari, for the appellants. FAC |
K. N. Rajagopal Sastri and T. Satyanarayana, for the respondent No. 1., 1961. FAC |
September 22. FAC |
The Judgment of the Court was delivered by GAJENDRAGADKAR, J. FAC |
This is an appeal by a certificate granted by the High Court of Madras against its judgment and decree in Second Appeal 741 Suit No. 27 of 1939 filed by respondent 1 Gollapalli Ramalingamurthi against respondent 2 Immani Venkanna and his four sons appellants 1 to 4. FAC |
The appellants and respondent 2 are members of an undivided Hindu family. FAC |
The case for respondent 1 was that he had purchased the properties described ' in the Schedule attached to his plaint on April 1, 1936 in a sale held by the Official Receiver in the insolvency of respondent 2. FAC |
A registered sale deed was accordingly issued in favour of respondent 1 (exhibit P. 4) on September 21, 1936. FAC |
In pursuance of the said sale respondent 1 obtained possession and enjoyment of such properties after partitioning them with Rayudu, the brother of respondent 2. FAC |
In October, 1938, however, the appellants and respondent 2 trespassed on the said properties and so respondent 1 had to file the present suit claiming a declaration of his title in regard to the said properties, and asking for their possession and for past and future mesne profits. FAC |
That in brief is the nature of the suit from which the present appeal arises. FAC |
The claim thus made by respondents 1 was resisted by respondent 2 and the appellants on several grounds. FAC |
It was urged by respondent 2 that the transfer in favour of respondent 1 was benami and that respondent 1 was not the real owner of the properties. FAC |
In support of this case respondent 2 gave, what according to him, was the antecedent history of the sale in favour of respondent 1. FAC |
He alleged that he had sustained heavy losses in business conducted by him with the result that he was indebted to the extent of Rs. 25,000. FAC |
Apprehending that the suit properties would be lost to the family at the instance of his creditors he and his junior mother in law Kanthamani Seshamma approached respondent 1 's father in law Suryaprakasa Sastrulu for advice and on his advice respondent 2 executed a collusive and nominal mortgage deed for Rs. 1,000 (ex... |
Similarly, on the same advice a similar nominal transfer deed was executed in favour of respondent 1 on August 6, 1939, (exhibit P. 12) after the properties covered by the said document had been released from an earlier non possessory mortgage (exhibit P. II) which had been executed on July 21, 1930. FAC |
Thus, according to respondent 2 the documents executed in favour of respondent 1 were nominal and collusive and were not supported by any consideration. FAC |
Respondent 2 further alleged that the execution of the said collusive documents between him and respondent 1 came to the knowledge of some of his creditors and that led to an insolvency petition against respondent 2 by one of his creditors in 1.P. No. 91 of 1933. FAC |
This petition was filed in the Court of the Subordinate Judge at Ellore on September 15, 1933, against respondent 2. FAC |
In these insolvency proceedings respondent 2 was adjudicated insolvent and the Official Receiver, appointed to take charge of respondent 2 's properties, brought the said properties to sale subject to the aforesaid nominal mortgages in favour of respondent 1. FAC |
Kanthamani Seshamma purchased the said properties with her own money but benami in the name of respondent 1 on condition that respondent 1 would reconvey the said properties to the family of respondent 2 whenever called upon to do so. FAC |
The allegation of respondent 1 that he had obtained possession of the properties was denied, and it was urged that respondent 1 had no title to the properties and was entitled to no relief in the suit filed by him. FAC |
That is the substance of the pleas raised by respondent 2 and the appellants joined respondent 2 in making the same pleas by their separate written statement. FAC |
At the trial three issues were tried as preliminary issues; they were issues 5, 8 and 9. FAC |
Issues 8, and 9 were in regard to the court fees payable on the claim made in the plaint and regarding the pecuniary jurisdiction of the Court. FAC |
The Court found that it had jurisdiction to try the suit and it valued the subject matter of the suit at Rs. 2,411 7 2 on which additional court fees was paid by respondent 1. FAC |
Issue 5 was as to whether the sale in favour of respondent 1 bound the shares of the appellants in the family properties. FAC |
The learned trial judge answered this issue in favour of the appellants purporting to follow the Full Bench decision of the Madras High Court in Ramasastrulu vs Balakrishna Rao (1). FAC |
According to the said decision the right of respondent 2 as the father of the appellants and manager of the undivided Hindu family to sell the shares of his sons for purposes binding on the family did not vest in the Official Receiver on his insolvency, and so the sale effected by the Official Receiver in favour of res... |
After these findings were recorded respondent 1 applied for the amendment of his plaint and the said amendment was allowed. FAC |
By this amendment respondent 1 alleged that the suit properties were the self acquired properties of respondent 2 and so the appellants had no interest therein. FAC |
On this alternative plea it was urged by respondent 1 that the properties sold by the Official Receiver to respondent 1 conveyed the entire properties which belonged to respondent 2 alone. FAC |
In addition to this alternative claim made by an amendment respondent 1 also made an alternative prayer that he should be either given possession of the whole of the properties or 1/5th of the properties according as the properties are found to be separate properties of respondent 2 or are held to be properties of the ... |
These alternative grounds taken by respondent 1 by virtue of the amendment were traversed by respondent 2 and the appellants in their additional written statements.(1) I.L.R. 744 FAC |
When the suit went to trial on the amended pleadings several issues were framed by the learned trial judge. FAC |
In addition to the issues arising on the pleadings the learned trial judge framed suo motu one more issue 1(a), whether respondent 1 was the benamidar of the appellants, and if yes whether the appellants could be allowed to plead the same as a defence in the suit. FAC |
The learned trial judge found that the suit properties were the joint family properties of respondent 2 and the appellants. FAC |
Alternatively he held that even if they were originally the self acquired properties of respondent 2 they had been blended with the family properties and thus became the properties of the undivided family. FAC |
He found that the shares of the appellants in the said properties did not vest in the Official Receiver and so were not conveyed to respondent 1. FAC |
He came to the conclusion that the purchase by respondent 1 from the Official Receiver was only a benami transaction for the benefit of the appellants and that respondent 1 had not obtained possession of the properties at any time. FAC |
According to the learned trial judge the sale in favour of respondent 1 was fraudulent and was brought into existence to defraud the creditors of respondent 2; and this fraud had been carried out and the creditors of respondent 2 had been defrauded. FAC |
Since the fraud had been carried out, the learned judge held respondent 2 and the appellants could not be allowed to plead the same as a defence in the suit. FAC |
As a result of this finding the learned judge passed a preliminary decree in favour of respondent 1 for 1/5th share in items 1 to 4 and 8 to 10 of the properties described in the Schedule attached to the plaint. FAC |
In regard to items 5 to 7 on which the dwelling house of the family was constructed the learned judge held that respondent 1 was entitled to monetary compensation. FAC |
Consistently with the preliminary decree thus passed as to the share of respondent 1 the learned judge 745 also directed that future mesne profits should be determined under O. 20, r. 12(c) of the Code of Civil Procedure. FAC |
Against this decree respondent 1 preferred an appeal, No. 288 of 1943, in the Court of the Subordinate Judge,, West Godavari at Ellore. FAC |
In this appeal he claimed that a decree should be passed in his favour in respect of the whole of the properties sold to him by the Official Receiver. FAC |
The appellants filed cross objections and urged that the learned trial judge was in the error in framing issue 1 (a) suo motu and challenged his conclusion on it. FAC |
The appellate Court agreed with the conclusions of the trial judge and so dismissed both the appeal and the cross objections. FAC |
Against this appellate decree respondent I filed a Second Appeal, No. 1656 of 1947, and the appellants filed cross objections. FAC |
This appeal came on for hearing before Mr. Justice Raghava Rao and it was urged before him that since the Provincial Insolvency (Amendment) Act No. 25 of 1948 which introduced section 28A had come into operation in the meanwhile retrospectively the decision of the Courts below that the Official Receiver could not in la... |
This contention was raised by respondent 1. FAC |
It was met by the appellants by their counter contention that issue 1(a) had been sprung upon them as a surprise; it had been framed by the trial court after it had heard arguments on both sides and that the appellants had no opportunity to show that in fact the fraud contemplated by the parties had not been effectivel... |
They alleged that if the fraud had not been carried out the principle of estoppel invoked against them could not come into play. FAC |
This contention raised by the appellants was accepted by the High. FAC |
Court which called for a finding by the trial co art on issue 1(a), after giving both the parties an opportunity to adduce evidence on the 746 question about the completion or otherwise of the fraud connected with the benami purchase. RLC |
After remand the trial court took evidence and made a finding that respondent 2 bad successfully played fraud on his creditors by getting the properties purchased by respondent 1 benami for his sons at the sale held by the Official Receiver. RLC |
In due course this finding was submitted by the trial court to the High Court. FAC |
Thereupon the appellants filed objections to the said finding. FAC |
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