Case Note & Summary
These appeals arose from two suits concerning a Hindu widow's sale of property that was subject to a usufructuary mortgage. The dispute was between the purchaser of the property and the reversioners of the widow's deceased husband. Prithi Dubey died on July 14, 1932, leaving his widow Laung Kuer as his heir. On June 21, 1935, she executed a Zerpeshgi deed (usufructuary mortgage) in favour of Rajdewan Dubey and Kailash Dubey, who were also the next reversioners, for Rs. 1,100, admittedly binding on the reversioners. On June 17, 1943, Laung Kuer sold a portion of the mortgaged property to the appellant for Rs. 1,600, out of which Rs. 1,100 was reserved with the purchaser to redeem the Zerpeshgi and Rs. 500 paid in cash. The sale deed recited that the cash was needed for repairs to the family dwelling house, purchase of two bulls, and repair of a well. The appellant attempted to redeem the mortgage, deposited the mortgage amount under Section 83 of the Transfer of Property Act, and filed a redemption suit. The reversioners filed a suit for declaration that the sale was not binding on them. The trial court and the first appellate court held the sale was supported by necessity and binding, granted redemption and dismissed the reversioners' suit. In second appeal, a Division Bench of the Patna High Court reversed, holding that a widow cannot sell usufructuarily mortgaged property because it jeopardises the reversioners' right to redeem, following Dasrath Singh v. Damri Singh, and declining to follow the later decision in Lala Ram Asre Singh v. Ambica Lal. The High Court also thought there was no finding on bona fides. The Supreme Court held that the High Court was in error. It laid down that there is no absolute prohibition against a widow selling property subject to a usufructuary mortgage; the question is whether the sale is justified as that of a prudent owner, to be determined on facts. The court found that necessity was established for all items and that the appellant acted bona fide. It disapproved Dasrath Singh and approved Lala Ram Asre Singh. On the practice point, the Supreme Court held that when a Bench gives a decision on a question of law, it should generally be followed unless there are reasons to differ, in which case a Full Bench reference is appropriate; and when two conflicting decisions are placed before a later Bench, that Bench should refer the matter to a Full Bench rather than choose between them. Accordingly, the appeals were allowed, the High Court judgment set aside, and the sale deed was held binding on the reversioners.
Headnote
A) Hindu Law - Widow's Power of Sale - Sale of Usufructuarily Mortgaged Property - Transfer of Property Act, 1882, Section 83 - The question whether a Hindu widow can sell property subject to a usufructuary mortgage in discharge of the mortgage debt is to be determined on the facts of each case; there is no absolute prohibition. The test is whether the act is one which can be justified as that of a prudent owner managing his or her own properties. The High Court erred in holding that the sale deed was not binding on the reversioners merely because the property was subject to a usufructuary mortgage; the sale was supported by necessity and bona fide. Held that Dasrath Singh v. Damri Singh was disapproved and Lala Ram Asre Singh v. Ambica Lal approved (Pages 559-564). B) High Court Practice - Binding Nature of Bench Decisions - Conflicting Decisions of Benches - Constitution of India, Article 133(1)(c) - A Bench of the High Court should generally follow a previous decision on a question of law unless it has reasons to differ, in which case it should refer the question to a Full Bench. When two conflicting decisions are placed before a later Bench, the better course is to refer the matter to a Full Bench without taking upon itself to decide whether it should follow the one Bench decision or the other. The Patna High Court Bench in the present case erred in following Dasrath Singh v. Damri Singh in preference to Lala Ram Asre Singh v. Ambica Lal without referring the conflict to a larger Bench. Held that the proper practice is reference to Full Bench (Pages 562-564).
Issue of Consideration
Whether a sale by a Hindu widow of properties subject to a usufructuary mortgage is beyond her powers and not binding on reversioners when the mortgagee cannot sue to recover the mortgage amount; and what practice should a High Court Bench follow when confronted with two conflicting earlier Bench decisions on the same question of law.
Final Decision
The Supreme Court allowed Civil Appeals Nos. 645 and 646 of 1957, set aside the judgment of the Patna High Court, and held that the sale deed dated June 17, 1943, executed by the widow in favour of the appellant was binding on the reversioners. The Court held that there is no absolute prohibition against a widow selling property subject to a usufructuary mortgage; the question is whether the sale is justified as that of a prudent owner, to be determined on facts of each case. It disapproved Dasrath Singh v. Damri Singh and approved Lala Ram Asre Singh v. Ambica Lal. The Court also held that when a High Court Bench is faced with two conflicting earlier Bench decisions, it should refer the matter to a Full Bench rather than choose between them.
Law Points
- A Hindu widow may sell property subject to a usufructuary mortgage if the sale is justified as that of a prudent owner
- no absolute prohibition
- necessity to be determined on facts
- earlier Bench decision binding unless referred to Full Bench
- conflicting Bench decisions require Full Bench reference
