Gurbachan Singh & Ors Vs. Puran
Singh & Ors  INSC 79 (6 March 1961)
CITATION: 1961 AIR 1263 1962 SCR (1) 176
Hindu law-Ancestral Property-Lands obtained
in lieu of ancestral lands in consolidation Proceedings Area representing
ancestral land, if ancestral.
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.
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
I. M. Lal and Mohan Lal Aggarwal, for
respondents Nos. 1 to 4.
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
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
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 and
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
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 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
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.
(1) (1946) 48 P.I.R. 336. (2) A.I.R. 1948
E.P. 220 25.