Decided on July 27,1950

Gulzara Singh And Ors. Respondents


Kapur, J. - (1.) THESE are six appeals directed against three judgments and decrees of the learned Additional District Judge of Ludhiana whereby he varied the decrees passed by the trial Court in Suits Nos. 528, 529 and 531 of 1943. The facts of the case are not very simple and may be stated at some length. The vendors and the Plaintiff are related in the following manner: NANAK | ___________________________________ | | Kahan Singh Mehru | | Buta Khazan | Singh Ram Ditta | (adopted son) | | ___________________________________________ | | | | Deva Attar Hira Wazir Singh Singh Singh Singh | | | Hazara | Gulzara Singh Singh | (Plaintiff) __________________________ | | | | Major Singh Dhanna Singh (Vendor) (Vendor) On 29 -12 -1933 Dhanna Singh sold half share of the whole area in dispute to Dewa Singh, Sohna and others for a sum of Rs. 4,900. The vendees in their turn resold the property to one Ashar Singh and on 24 -8 -1934 Major Singh pre -empted the sale and obtained this half share by means of a pre -emption decree. In order to pay off the pre -emption money Major Singh sold his half share to Bhag Singh. He also sold a portion of the property that he obtained by pre -emption to Chanan Singh and another portion to Indar Singh.
(2.) GULZARA Singh, a collateral who claims to be a minor, brought three suits. Suit No. 528 was to challenge the sale in favour of Indar Singh. Suit No. 529 was to challenge the sale in favour of Chanan Singh. Suit No. 581 was to challenge the sale in favour of Bhag Singh. In all these suits the vendees pleaded that the land was not ancestral. In Suits Nos. 528 and 529 the plaint was allowed to be amended and instead of challenging the sale by Major Singh to Chanan Singh and Indar Singh the original sale of Dhanna Singh of 29 -12 -1933 was challenged by Gulzara Singh. A large number of pleas were raised by the Defendants and an equally large number of issues were stated by the learned trial Judge, but he found that the whole of the land sold was non -ancestral as also the half house which was comprised in Suit No. 528 and, therefore, he dismissed the suit. Appeals against those decrees were taken to the learned District Judge, who by his judgment dated 8 -7 -1948 has hold (1) that half the house was rightly held to be non -ancestral (2) he divided the land into four categories (a) 24 fields mentioned on pages 120 and 121 in the settlement records of 1852 which were recorded to be the property of Kahan son of Nanak, (b) 15 fields recorded in that settlement in the name of third parties, (c) 21 fields entered at page 124 of the settlement record of 1852 stood in the name of Mehru, (d) shamilat land. There did not seem to be any dispute with regard to category (b). With regard to (a) he held that the land had been proved to be ancestral, and (c) he held to be non -ancestral, and the shamilat would follow the Khewat land. Against these three judgments and decrees these appeals have been filed, three by the vendees and three by Gulzara Singh, and this judgment will dispose of all the six appeals. With regard to -category No. (c), i.e., land which had come from Mohru, it appears that Khazan Singh, the grand -father gifted this portion in the proportion of one -third to Dewa Singh and the rest to the other sons. Hazara Singh, who was the son of Attar Singh, sold his one -third share to Hira Singh and Wazir Singh. He held the whole of this land to be non -ancestral on the ground that the property had not come by inheritance to the sons of Khazan Singh and had come otherwise than by descent or by reason merely of their connexion with the common ancestor. Mr. Rup Chand Chaudhri for Gulzara Singh submits that this land should have been held to be ancestral because the gift was to the sons who would otherwise have inherited it. I am unable to agree with this submission. In Rattigan's Digest of Customary Law, a book of undoubted authority, it is stated that the rule is now firmly established that land ceases to be ancestral if it comes into the hands of an owner, otherwise than by descent or by reason merely of his connexion with the common ancestor (see p. 268), and in two Division Bench judgments of the Lahore High Court the same view has been expressed: see Saif -ul -Rahman v. Muhammad Ali Khan 9 Lah. 95 at p. 102 :, A.I.R. 1928 Lah. 285 and Jagtar Singh v. Raghbir Singh 13 Lah. 165 at p. 169 :, A.I.R. 1932 Lah. 85. These are judgments of high authority and I most respectfully agree with the view expressed therein, and I must, therefore, hold that this part of the property has rightly been held to be non -ancestral. Coming now to category No. (a) which the learned Judge has found to be ancestral, I must held that its ancestral nature has not been proved. The land was held by Kahan Singh and then went to Buta who gifted it to his adopted son Ram Ditta, and on his death it went to Gurditta son of one Vir Singh. Later on evidently as a result of some litigation the land was re -mutated in the name of Buta who was then alive. This land was then inherited equally by the three sons and one grandson of Khazan Singh, but it appears that Hazara Singh, the grandson, sold his share to his uncles. Dewa Singh was by then dead. This one -third share cannot, therefore, be held to be ancestral. Out of the two -third share half of the whole had already been taken by Major Singh by pre - emption and any sale effected by him cannot be said to be sale of ancestral property. No doubt there was amendment of the pleadings allowed by the learned trial Court, but I do not see why this amendment should have been allowed and why a collateral in a case of this kind should be allowed to challenge an alienation when the nearest collateral, i.e., a brother, was not only not challenging the sale but was acquiescing in it. With regard to the remaining one -sixth share also I am unable to hold that it has been proved to be ancestral. The ancestral and the non -ancestral are so intermingled that it is difficult to say what portion is ancestral and what is not. I must, therefore, hold that the whole of the land comprised in category (a) has not been proved to be ancestral.
(3.) IN the result I allow the appeals filed by the vendees and dismiss the appeals filed by Gulzara Singh, the collateral. As a result all the suits are dismissed. The vendees will have their costs in this Court as well as in the Courts below.;

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