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TMI Blog1944 (4) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Mt. Chauli is the daughter of Mt. Lachhmi. This was a joint family of Jains and it is admitted that the daughter's daughter would have preference in respect of self-acquired property over a daughter's son but that a daughter's son would succeed to the ancestral property in preference to a daughter's daughter. It thus became necessary to decide which of the properties in suit were self-acquired and which were ancestral. The trial Court held that Somli village was ancestral property, that the enclosure was acquired with the aid of an ancestral nucleus of property and that the share in Nandpur was self-acquired. In view of certain transfers by the daughters of Amolak Ram, the Court found that the plaintiff was entitled to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench was exactly the same as would have been the position of the first Bench if the appeal had come up before the same Judges again when findings on the issues were submitted by the trial Court. If the learned Judges of the first Bench would have been entitled to reconsider their previous findings the learned Judges of the second Bench are similarly so entitled. If the learned Judges of the previous Bench had not been entitled to reconsider their findings, then the learned Judges of the second Bench would equally not be so entitled. In order to simplify the matter, therefore, I propose to consider whether the learned Judges who constituted the first Bench could have reconsidered their findings, in the circumstances of this case, if the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer Court must try the issues and submit the finding Section Any other findings which are recorded cannot be carried into effect until an ultimate decree is passed. One can well imagine circumstances in which it might be quite clear that the original findings were erroneous and it seems impossible to me that the Court when it came to pass its decree, would be compelled to pass an erroneous decree as the result of those finding Section It might be, for instance, that a question of law was involved which in the meanwhile had been settled by a superior Court in such a way as to render the previous findings wrong. It may also be that the previous findings can be shown to have been based on a misconception due to some oversight or misapprehensio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of his predecessor on the points which had already, before the issues were remitted, come up for decision. The learned Judges of the High Court decided that he was entitled to do so. The necessary finding in this case is not contrary to my opinion although some of the dicta in the judgment of one of the learned Judges might suggest that there were occasions on which a Court might not be entitled to reconsider its own decision arrived at when issues had been 'remitted. This learned Judge seems to have thought that in some cases decisions of this kind might amount to a preliminary decree but the other learned Judge does not appear to have agreed with him. There can be no question of a preliminary decree in the case with which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment was delivered. In so far as any part of the judgment is based upon an assumption or hypothesis which is now ascertained to be erroneous, it is, we think, competent to us--or rather, it is incumbent on us -- to disregard it, and to re-open that portion of the case affected by the error. 7. That is a view with which I concur. 8. In (88) 10 All. 162 Lachman Prasad v. Jamna Prasad. it was held that the Court after the return of findings on issues remitted was entitled to reconsider the whole case de novo and in fact in that case the Bench which 'finally passed the decree disagreed with the opinions of the Bench expressed at the time when issues were remitted. I consider that this is the right view to be taken. The same view was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by a learned Single Judge of the Lahore High Court that he was not entitled to do so. I am of opinion, with the greatest respect, that the decision was not right in principle and that the weight of authority is against it. As far as this Court is concerned, the authorities seem to be all one way. My answer to the question referred to us is that the Bench which will now hear the appeal is not bound by the findings at which the former Bench has arrived but that it is entitled, in its discretion, if it so desires, not to reconsider the findings. Ismail, J. 9. I agree. Yerma, J. 10. I also agree. 11. Our answer to the question referred to us is that the Bench which will now hear the appeal is not bound by the findings a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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