JAISRI SAHU versus RAJDEWAN DUBEY AND OTHERS

Citation: [1962] 2 S.C.R. 558 · Decided: 28-04-1961 · Supreme Court of India · Bench: T.L. VENKATARAMA AIYYAR · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

1961 
Nilkanlha 
SAidramappa 
Ningashetti 
v. 
l(ashinath 
Somanna 
NingashetH 
RaghubaY 
Dayal }· 
iy6 r 
April a8. 
558 
SUPREME COURT REPORTS 
[1962) 
praying for the setting aside of the award, no ques-
tion of refusing to set it aside can arise and therefore 
no appeal was maintainable under s. 39(l)(VI) of the 
Arbitration Act which allows an appeal against itn 
order refusing to set aside an award. 
Lastly, it was submitted that the objection to the 
effect that the award was illegal and without jurisdic-
tion, inasmuch as the arbitrator included in the 
award property which did not fall within the scope of 
his authority, should have been considered by the 
trial Court. Such an objection was not pressed before 
the trial Court and therefore the High Court did not 
allow that objection to be taken before it. 
We think 
that the High Court was right in not allowing the 
objection to be raised since it, being not pressed in the 
trial Court, will be presumed to have been given up. 
We therefore see no force in this appeal and dismiss 
it with costs. 
Appeal dismissed. 
JAISRI SAHU 
v. 
RAJDEWAN DUBEY AND OTHERS 
(P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. c. DAS 
GUPTA and T. L. VENKATARAMA ArYAR, JJ.) 
Hindu Law-Mortgage by widow-Sale by widow to discharge 
mortgage debt- When binding on reversioners. 
High Court-Practice-·Decision of a Bench-Binding nature 
of, on another Bench-Conflicting decisions of Benches before a later 
Bench-Procedure to be adopted-Desirability of reference to Full 
Bench. 
P died on July 14, 1932, leaving behind his widow, Las his 
heir. On June 21, 1935, L executed a Zerpeshgi in favour of 
the respondents for an admittedly binding purpose, and on June 
17, 1943· she sold to the appellant a portion of the properties 
which were the subject-matter of the Zerpeshgi deed for the 
purpose of redeeming the Zerpesbgi and for certain other neces-
sary purposes. The respondents who were the reversioners 
2 S.C.R. SUPREME COURT REPORTS 
559 
instituted a suit challenging the validity of the sale. The trial 
196. 
court and the lower appellate court hel<l that the sale was a 
proper one binding on the reversioners. On second appeal, a 
]aisri Sahu 
Division Bench of the Patna High Court took a contrary view 
v. 
and allowed the appeal. One of the judges while he did not Rajdewan Dubey 
disagree with the findings of fact of the courts below as to the 
necessity for the sale followed a decision of the same High Court 
to the effect that a widow cannot by selling properties s11bject 
to usufructuary 1nortgage jeopardise the right of reversioners to 
redeem them. A different view of the law had been taken in a 
later decision of that court, but the learned judge declined to 
follow that decision observing that the practice of that Court 
was either to follow the previous Division Bench ruling in pre-
ference to the later or to refer the case to a larger Bench for 
settling the position, but that in the present case it was not 
desirable to adopt the latter course. The other learned Judge 
was of the opinion that the sale deed was not supported by 
necessity. 
Held, that the High Court was in error in holding that the 
sale deed in favour of the appellant was not binding on the 
reversioners. 
When there is a mortgage subsisting on the property, the 
question whether the widow could sell it in discharge of it is a 
question which must he determined on the facts of each case, 
there being no absolute prohibition against her effecting a sale 
in a proper case. What has to be determined is whether the act 
is one which can be justified as that of a prudent owner manag-
ing his or her own properties. 
Hanooman Persaud v. Mussamat Babooee, (1856) 6 M.I.A. 393, 
Va11kaji v. Vishnu, (1894) I.L.R. 18 Born. 534 and Viraraju v. 
Vankataratnam, I.L.R. [1939] Mad. 226, relied on. 
Dasrath Singh v. Damri Singh, A.I.R. 1927 Pat. 219, dis-
approved. 
Lal Ram Asre Singh v. Ambica Lal, 1929 Pat. 216, approved. 
Held, further, that 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. Where two conflicting deci· 
sions are placed before a later Bench, the better course for the 
latter is to refer the matter to a Full Bench without taking upon 
itself to decide whether it should follow the one Bench decis

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