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PETITIONER: GURBACHAN SINGH AND OTHERS

       Vs.

RESPONDENT: PURAN SINGH AND OTHERS

DATE OF JUDGMENT: 06/03/1961

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1961 AIR 1263            1962 SCR  (1) 176

ACT: Hindu  law-Ancestral  Property-Lands  obtained  in  lieu  of ancestral   lands   in   consolidation   Proceedings    Area representing ancestral land, if ancestral.

HEADNOTE: One ’M’ executed a will bequeathing the property in dispute. suit was brought for declaration, inter alia, that the  will was  effective and ’M’ had no power to bequeath the land  in dispute it was ancestral qua the defendants. The  question for decision was whether the portion  of  land high  had  fallen  to  the share  of  ’M’  in  consolidation proceedings  in  lieu of his share in land held by  him  was ancestral or not. Held,’ that where land had been consolidated and in lieu  of ancestral  lands and non-ancestral land a consolidated  area was  given to a proprietor, then such of the portion of  the consolidated  area  which corresponds to the  area  of  land which was ancestral, will be ancestral land. Where the possession by the immediate common ancestor is not shown  in  the  revenue records but that of  a  more  remote direct ancestor is shown, and the history of the land  gives no indication of its acquisition except by inheritance,  the land would be ancestral. Attar  Singh  v.  Thakar Singh, (1908)  L.R.  35  I.A.  206, referred to. Haveldar  Mihan Singh v. Piara Singh, (1946) 48  P.L.R.  536 and  Gurdev  Singh  v.  Desaundki,  A.I.R.  1948  E.P.   22, approved.

JUDGMENT: CIVIL  APPELLATE,  JURISDICTION.  Civil Appeal  No.  492  of 1958. Appeal by: special leave from the, judgment and order  dated September 12, 1955, of the Punjab High Court, Chandigarh, in Regular Second Appeal No. 747 of 1951. Achhru Bam and K. L. Mehta, for the appellants. I. M. Lal and Mohan Lal Aggarwal, for respondents Nos. 1  to 4.

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1961.  March 6. The Judgment of the Court was delivered by KAPUR, , J.-This appeal arises out of the judgment and order of the High Court of the Punjab reversing 177 in  second appeal the decree of the District Court and  thus dismissing the plaintiffs suit for declaration.  In order to understand  the question in controversy it is  necessary  to set out the following pedigree:                             Milkhi                           Himmat Singh Gulab Singh               Mehtab Singh               Fattu (dead)                                          Leekar(dead) Mangal Singh              Lalu     Sheru        Nathu Singh (testator)                (dead)   (dead) Harnam Singh             Sohel Singh          Waryam Singh                         (Plaintiff No. 1) (Plaintiff NO. 2) Karnail      Ajaib     Amar       Shiv                Puran Singh        Singh     Singh      Singh               Singh (deft.NO.3) (deft.NO.2) (deft.No.1) (PHf.NO.3)   (deft.NO.4) On August, 11 1947 Mangal Singh executed a will  bequeathing the property in dispute to Amar Singh defendant No. 1. After the  death of Mangal Singh on October 25, 1947 the  mutation of  his  estate was effected in the name of  Amar  Singh  on April.10,  1948 by mutation No. 733.  The  plaintiffs  Sohel Singh,  Waryam Singh and Shiv Singh brought a suit for  dec- laration that the will was ineffective against them and  for possession of certain parcels of land mutated in the name of Amar Singh.  The allegation was that the will was made under undue  influence, coercion and fraud and that  Mangal  Singh had  no  power to make the will as the land in  dispute  was ancestral qua the defendants.  These allegations were denied and requisite issues were raised.  The suit was dismissed by the  trial  court holding that it was not  proved  that  the execution of the will was procured by the exercise of  undue influence  or  coercion or fraud and that the land  had  not been proved to be ancestral. 178 An  appeal  was taken against this decree  to  the  District Judge  who held that out of 66 Kanals, 2 Marlas of  land  in dispute  an area of 28 Kanals, 3 Marlas was ancestral as  it was held by Himmat Singh, father of Mehtab Singh the  common ancestor.   The District Judge also held that  Mehtab  Singh had  predeceased Himmat Singh but of this there seems to  be no proof.  On appeal the High Court reversed the judgment of the District Judge ,nd restored that of the trial court  and the appellants have come in appeal to this court by  special leave. The sole question for decision in this appeal is whether  28 Kanals 3 Marlas out of the land in suit by the  appellant.-, is proved to be ancestral qua them.  Out of the land claimed 20 Kanals 19 Marlas described in Para A-2 had been proved to have been acquired by Mangal Singh by preemption and another portion was his self-acquired mortgagee land.  Therefore the dispute  was  confined to certain Khasra numbers  which  had fallen-to  the  share  of  the  testator  in   consolidation proceedings  in lieu of his share in land held by him.   The excerpt  P.W. 6/1 prepared by the Special Kanugo shows  that some  of those Khasra numbers were traced to the  possession of  Himmat Singh s/o Milkhi in 1849 and some Khasra  numbers were traced to the possession of Himmat Singh and others and the remaining were traced to strangers.  The District  Judge held  that  only the land which was held in 1849  by  Himmat Singh  could be ancestral qua the plaintiffs  and  therefore decreed  the  suit in regard to that portion  which  was  28 Kanals  and 3 Marlas and that is the area of the land  which

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is now in dispute. In  order  to come to this conclusion the  learned  District Judge  in  an elaborate judgment has traced the  history  of each  Khasura  number and decreed only those  Khasras  which were  held by Himmat Singh.  The High Court did  not  accept this  finding  but, in our opinion, the High  Court  was  in error  in  interfering  with that  finding.   At  the  first regular settlement the land decreed was held by Himmat Singh and  the  revenue  pedigree shows that  in  1885  the  three branches 179 descending  from  Himmat Singh, i.e., Gulab  Singh  who  was alive,  sons  of Mehtab Singh and Leekar son of  Fattu  held khewat Nos. 34, 35 and 36 which were equal in area and  each branch  was paying land revenue of Rs. 13.  The excerpt  Ex. P.  W.  6/1 prepared by the Kanungo further shows  that  the land  held by the sons of Mehtab Singh, i. e., Khata No.  34 was  held  by them jointly and in equal  shares.   On  these facts the finding in regard to the land decreed was held  to be ancestral. It was argued on behalf of the respondents that the land was not ancestral and that it cannot be ancestral unless it  was shown that it was held by the common ancestor, i. e., Mehtab Singh and as there was no revenue entry showing the land  to have  been  held  by him the land could not be  said  to  be ancestral.   Support for this was sought from a judgment  of the  Privy Council in Attar Singh, v. Thakar Singh(1)  where Lord Collins observed as follows:-               "It  is through their father, as heir  of  the               abovenamed  Dhanna Singh, that the  plaintiffs               claimed,  and unless the lands came to  Dhanna               Singh  by descent from a lineal male  ancestor               in  the male line through whom the  plaintiffs                             also  in  like  manner claimed,  they  are  no t               deemed ancestral in Hindu law." But this does not support the submission of counsel for  the respondents.   It is true that in the present case the  land was  hold  by  a remote ancestor and not  by  the  immediate common  ancestor but the history of the land which has  been referred to above clearly shows the ancestral nature of  the land  in  the hand of the descendants, the  parties  to  the present appeal.  It therefore is ancestral.  The  contention of the respondents does not find support from decided  cases and it is an erroneous view to take that merely because  the possession by the common ancestor itself is not shown in the revenue records but that of a more remote direct ancestor is it  is  non-ancestral even though the history  of  the  land gives  no indication of its acquisition by  the  descendants except by inheritance. (1)  (1908) L.R. 35 I.A. 2o6,211. 180 It  was  then  argued  that as the  land  claimed  had  been consolidated  and both ancestral and non-ancestral land  had got  mixed  up  it  cannot be said as  to  what  portion  is ancestral  and what is non-ancestral.  This again is  not  a correct  approach  to  the question.  Where  land  has  been consolidated  and  in  lieu  of  ancestral  lands  and  non- ancestral land a consolidated area is given to a  proprietor then  such  of the portion of the  consolidated  area  which corresponds to the area of land which was ancestral will  be ancestral  land.  It was so held in Haveldar Mihan Singh  v. Piara Singh (1) which is a decision of Abdul Rashid and Mehr Chand  Mahajan, JJ. (as they then were).  The same view  was taken in a later’ judgment of the East Punjab High Court  in

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Gurdev Singh-v.  Dasa. undhi (2) where it was observed:-               "However,  where the ancestral portion of  the               land  so  given  or thrown  was  by  no  means               negligible  and bore a definite proportion  to               the  whole  of-  the  land  there  can  be  no               difficulty  in apportioning the land  acquired               according  to the areas of the two classes  of               such   land,   namely   ancestral   and   non-               ancestral." The District Judge in our view rightly held that 28 Kanals 1 and  3 Marlas were ancestral and he has rightly decreed  the suit qua that portion. The  appeal  therefore  succeeds and is  allowed,.  and  the decree of the District Judge is restored with costs in  this Court and in the High Court. Appeal allowed. (1) (1946) 48 P.I.R. 336.   (2) A.I.R. 1948 E.P. 220 25. 181