Allowed

Gurbachan Singh and Others v. Puran Singh and Others

Supreme Court6 Mar 19611961 INSC 76 · [1962] 1 S.C.R. 1761961 INSC 76

Case brief

AI extract

What is this about?

Suit for declaration that a will was ineffective over land claimed to be ancestral. The Supreme Court held that where consolidated land is given in lieu of mixed ancestral and non-ancestral land, the portion corresponding to the ancestral area remains ancestral, restored the District Judge's decree of 28 Kanals 3 Marlas as ancestral, and allowed the appeal with costs.

What did the court decide?

Appeal allowed; decree of the District Judge restored with costs in this Court and the High Court.

What the court decided

Gurbachan Singh and Others versus Puran Singh… — Succession and Inheritance | Supreme Court (1962)

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.... "-

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176 SUPREME COURT REPORTS [1962]

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I9⁶ '

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March 6.

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GURBACHAN SINGH AND OTHERS

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II,

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PURAN SINGH AND OTHERS

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"(J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.)

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Hindu law-Ancestral property-Lands obtained in lieu of ancostral lands in consolidation proceedings -Area representing ancestral land, if ancestral.

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One 'M' executed a will bequeathing the property in dispute. A suit was brought for declaration, inter alia, that the will was ineffective and 'M' had no power to bequeath the land in dispute as it was ancestral qua the defendants.

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The question for decision was whether the portion of land which had fallen to the share of 'M' in consolidation proceedings in lieu of his share in land held by him was ancestral or not.

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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.

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.•

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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.

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Attar Singh v. Thakar Singh, (1908) L.R. 35 I.A. 206, referred to.

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Haveldar Mihan Singh v. Piara Singh, (1946) 48 P.L.R. 536 and Gurdev Singh v. Desaundhi, A.LR. 1948 E.P. 22, approved.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 492 of 1958.

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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.

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.. ,

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Achhru Ram and K. L. Mehta, for the appellants.

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I. M. Lal and Mohan Lal Aggarwal, for respondents Nos. 1 to 4.

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March 6. The Judgment of the Court was delivered by

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Kapur }. KAPUR, J.-This appeal arises out of the judgment and order of the High Court of the Punjab reversing

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l S.C.R. SUPREME COURT REPORTS 177

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·~

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in second appeal the decree of the District Court and z96z thus dismissing the plaintiffs' suit for declaration. In , -h-s· h , , . 't , Gu>"ac an ing or er to un erstan t e quest10n rn controversy d d d h 1 IS & Olhm necessary to set out the following pedigree: v. Milkhi J-luran Singh [ & Others

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Milkhi
[
Himmat Singh
I
I I I
Gulab Singh Mehtab Singh Fattu
(dead) I I Leekar (dead)
I . I I I
Mangal Smgh Lalu Shern Nathu Singh
(testator) (dead) (dead) I I
I I I
Harnam Singh Sohel Singh Waryam Singh
,j (Plaintiff No. r) (Plaintiff No. 2)

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Kapur J.

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. I . I I I I
Karnail Ajaib Amar Shiv Puran
Singh Singh Singh Singh Singh
(deft. No. 3) (deft. No. 2) (deft. No. r) (Plff. No. 3) (deft. No. 4)

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On August 11, 1947 Mangal Singh executed a will bequeathing the property in dispute to Amar Singh defendant No. l. After the death of Mangal Singh on October 25, 194 7 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 declaration 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 prov. ed 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 ancestrai. 23

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178 SUPREME COURT REPORTS (1962]

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r96r An appeal was taken against this decree to the Dis- G b -h- . trict Judge who held that out of 66 Kanals, 2 Marlas "' ;c 0~;,;,;ngh of land in dispute an area of 28 Kanals, 3 Mar las was v. ancestral as it was held by Himmat Singh, father of Pu•an Singh Mehtab Singh the common ancestor. The District & Others Judge also held that Mehtab Singh had predeceased Himmat Singh but of this there seems to be no proof. Kapu• f. 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.

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The sole question for decision in this appeal is whether 28 Kanals S Mar las out of the land in suit by the appellants 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 pre-emption 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.

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In order to come to this conclusion the learned District Judge in an elaborate judgment has traced the history of each Khasra 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

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1 S.C.R. SUPREME COURT REPORTS 179

descending from Himmat Singh, i.e., Guiab Singh 1 96 1 who was alive, sons ofMehtab Singh and Leekar son c b --;:- 5 5 . of Fattu held khewat Nos. 34, 35 and 36 which were "' ;' 0 ;;.,,'"⁸ equal in area and each branch was paying land revev. nue of Rs. 13. The excerpt Ex. P. W. 6/1 prepared Pm an Singh by the Kanungo further shows that the land held by "' Others the sons of Mehtab Singh, i. e., Khata No. 34 was held by them jointly and in equal shares. On these facts Kapur f. the finding in regard to the land decreed was held to be ancestral.

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1 96 1 b --;:- 5 5 . h

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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:-

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"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 not deemed ancestral in Hindu law."

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•

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But this does not support the submission of counsel for the respondents. It is true that in the present case the land was held 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.

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(1) (1908) L.R. 35 I.A. 206, 211.

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180 SUPREME COURT REPORTS [1962]

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_196, _
GurbachanSingh
&Others
v.
PuranSingh
&Others
Kapur1.

Itwas then arguedthatastheland claimedhad
been consolidatedandboth ancestral and non-ances-
tralland had got mixedupitcannot be said as to
whatportion is ancestralandwhatis non-ancestral.
This again is not a correct approach tothequestion.
Where land has been consolidatedandin lieuof
ancestral lands and non-ancestral land a consolidated
area is given to a proprietorthensuchofthe portion
oftheconsolidated area which correspondstothe
areaofland which was ancestral will be ancestral
land.Itwas so held in_Haveldar1WihanSinghv._
_PiaraSingh(')which is a decisionofAbdul Rashid
and Mehr Chand Mahajan,JJ.(astheythenwere).
The same view was taken in alaterjudgmentof
theEastPunjabHighCourt in_Gurdev Singhv.Dasa-
undhi(')whereitwasobserved:-
"However, wheretheancestral portionofthe
lands(lgiven or thrown was by no means negligible
and bore a definite proportion to the wholeoftho
land there can be no difficulty in apportioning the
landacquired according to the areasofthe two
classesofsuch land, namely ancestralandnon-
ancestral."
TheDistrictJudgein our view rightly heldthat
28 Kanalsand3 Marlas were ancestralandhe has
rightly decreed the suit quathatportion.
The appeal therefore succeed;andis allowed,and
thedecreeofthe DistrictJudgeis restored with costs
in this CourtandintheHighCourt.
Appeal allowed.

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(1) (1946) 48 P.L.R. 536. (2) A.I.R. 1948 E.P. 22. 25.

Gurbachan Singh and Others v. Puran Singh and Others

Case brief

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Gurbachan Singh and Others v. Puran Singh and Others

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