Decided on June 01,1950

CHUHAR SINGH Respondents


Kesho Ram Passey, J. - (1.) THIS second appeal by the vendee arises out of the conflicting decisions of the Courts below regarding the ancestral character of the house in question and the legal necessity for which it was sold. One Gurmukh Singh of village Phulera sold his house on 8 -8 -2001 for Rs. 600 to Hazura Singh. Chuhar Singh a fourth degree collateral of the vendor brought a suit on 21 -8 -2003 impugning the validity of the alienation urging that the house was ancestral and that it had been transferred without any justifiable necessity. The Defendant denied the ancestral character of the house and maintained that Gurmukh Singh had sold it for purposes that were recognised by custom to be necessary. In addition the plea was taken that as the vendor had two sons alive the Plaintiff had no locus standi to attack the sale. The learned District Judge in differing with the trial Court regarding the nature of the property was, it appears, influenced by the wrong impression that the house was situate, in some field which the documentary evidence produced by the Plaintiff suggested was ancestral. The deed of sale recited that the house was situated in the Abadi of the Village and the copy of the Khana Shumari for the year 1907 also shows that, Albeal, common ancestor of the Plaintiff and the vendor, was in possession of six houses in the Abadi out of which the present house is claimed by the Plaintiff to be one.
(2.) MR . Kishori Lal states that he cannot support the finding of the lower appellate Court regarding the location, of the house. The learned District Judge has not adverted to the oral evidence examined in support of issue 2 but he has all the same held the house to be ancestral because there is according to him, a presumption of the land in the possession of the vendor being ancestral. If the property in dispute were a homestead existing on ancestral agricultural land the position might have been different. In that case it could justifiably be regarded to be an appendage of such land. But the ancestral character of a house in the Abadi has to be established by evidence showing that it had devolved upon the alienor from a common ancestor. Saddo Singh v. Mt Basant Kaur 3 J.C. Rep. Patiala 43 is an authority for the view that a house in possession of an agriculturist cannot be held to be ancestral merely because the land in his possession has been found to be ancestral and that the ordinary rule is that it must be proved by independent evidence that it is ancestral otherwise it must be assumed to be self -acquired. The evidence produced by the Plaintiff to prove the house to be ancestral consists of a copy of the Khan a Shumari of the year 1907. Ex. PX, and the statements of Mihan Singh, Indar Singh and Chuhar Singh, the first two being 80 and 60 years old, respectively. Exhibit PX only shows that Albela Singh son of Sihan who was the common ancestor of the vendor and the Plaintiff was in occupation of six kothas one of which was entered at No. 47 and the rest at No. 51. This entry would have been helpful to the Plaintiff if he had led evidence to prove that the house in question was one of those kothas that were recorded to be in the possession of Albela in 1907. No evidence to that effect has at all been led. The evidence of Mihan Singh, Indar Singh and that of the Plaintiff does not prove that the house came to the vendor from Albela. None of these witnesses has stated that he had seen Albela in possession. They could trace the occupation of the house to Amrik, Phuman and Jita sons of Albela only. What was required to be proved, however, was that Albela had been in possession of the house as owner but that the Plaintiff has failed to do. The fact that Gurmukh Singh is a man with a family and has two sons is not denied by the Respondent. The sons are of course minors but their existence would show that the Plaintiff has only a bare chance of succession to the estate of Gurmukh Singh. There is no evidence that Gurmukh Singh is given to evil ways or that he is a spendthrift prone to squander property which might injure the interests of his sons. On the contrary he has been shown to be in possession of 120 bighas, no part of which has been encumbered. As I have held above that the Plaintiff bas failed to prove the house to be ancestral and that the suit of the Plaintiff is speculative for which reason he has no locus standi, it is hardly necessary for me to go into the issue relating to legal necessity.
(3.) I accept the appeal with costs, reverse the decree of the lower appellate Court and restore that of the trial Court.;

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