History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.511

v4.c63.t2.511

Another objection raised even by some retired judges of the High Court is that the present system of laying down the Hindu Law by means of judicial decisions is quite satisfactory and there is no need of a code of Hindu Law. This objection merely shows that change is rather a painful process for most men. The present method may be a veritable El Dorado or paradise for lawyers and busy bodies fomenting longdrawn litigations. One must stand appalled at the colossal expenditure of time, labour and money which must have been involved during the last hundred years or more in fighting out doubtful points of Hindu Law from the lowest court to the Privy Council. It not unfrequently happens that after a point had been settled by a Full Bench decision of a High Court and after common people and lawyers had followed the law thus settled for fifty years the Privy Council upsets the decision on an appeal by an enterprising litigant. For example, the Bombay High Court decided in 1879 in *Ramji v. Ghamau* (6 Bom. 498) that the adoption by the widow of a deceased co-parcener, who had not her husband's express authority to adopt, was invalid, if made without the consent of the surviving co-parceners. But in 1932 the Privy Council held that *Ramji v. Ghamau* was wrongly decided and that a widow can adopt without her husband's express authority and even in the teeth of the opposition of the surviving members of her husband's family. And when an appeal was made to the principle of '*stare decisis*' the Privy Council was pleased to observe, 'It was pressed on their Lordships that *Ramji v. Ghamau* had been accepted and acted upon in the Presidency of Bombay since 1879 and that the decision should not be disturbed. But this is a belated appeal. It should have been made when *Yadav v. Namdeo* was before the Board.' To ordinary minds this dictum, speaking with the utmost respect, appears strange. If for some reason or other a certain line of argument is not placed before the Privy Council by the counsel of a private party and a wrong decision is given, is it to be supposed that all litigants are to be precluded from trying to set the wrong decision right for all time to come? The Privy Council has not seldom set right a wrong decision given by the Board in a prior appeal. In *Sahu Ram v. Bhup Singh* 44 I. A. 126 the Privy Council held that the pious duty of the son to discharge his father's or grandfather's debts does not attach while the father or grandfather is alive; but in *Brij Narain v. Mangla Prasad* 51 I. A. 129 the Privy Council held (at p. 134) that the pious duty is always there irrespective of the question whether the father or grandfather is alive or dead.