Inder Singh (Dead) through LRs. vs Chhano and Others

V.K. Bali, J.—This is defendant''s Regular Second Appeal, who even though in the matter of the suit filed against them by Smt. Chhano seeking possession of the land measuring 23 kanals 4-1/2 marlas might have succeeded inasmuch as the suit was dismissed by learned trial Court vide judgment and decree dated 30,5.1981, lost the matter in an appeal preferred by Smt. Chhano against the judgment and decree passed by learned trial Court, referred to above.

Brief facts of the case would reveal that Data Ram and Ganga Ram sons of Jag Ram owned the property in equal share. On the death of Data Ram, his son Jeeta inherited the same. Ganga Ram was married to Sunder. He died issueless. Property owned by him was inherited''by his widow Sunder, who is stated to have died in the year 1945. On her demise, the share erst-while owned by Ganga Ram was also inherited by Jeeta and on the death of Jeeta, his only son Sultan inherited the entire property. He made a sale of the land measuring 25 kanals 17 marlas for a consideration of Rs. 12,000/- in favour of the defendants vide sale deed dated 25.10.1971. Smt. Chhano filed a suit for declaration and possession seeking decree with Regard to the land measuring 25 kanals 17 marlas, which was, however, ultimately decreed to the extent of 23 kanals 4-1/2 marlas by, inter alia, pleading that Jeeta, her father-in-law, during his life time had gifted the property owned by him to the extent of 1/2 share to her whereas, remaining 1/2 share was gifted to Sultan by way of gift deed executed in the year 1962.

Defendant-appellants contested the suit on variety of grounds, as would be reflected from the issues that came to be framed by learned trial Court. Same read thus:-

"1. Whether plaintiff and defendant No. 3 were joint owners of the land 167 kanals 9 marlas as detailed in para No. 1 of the paint in equal shares? OPP

Whether defendant No. 3 disposed of 81 kanals 2 marlas of land of his share and only 2 kanals 12-1/2 marlas of land was left with him? OPP

The sale made by defendant No. 3 on 25.10.1971 to defendants Set No. l vide sale deed No. 131, is null and void not binding on the rights of the plaintiffs, because defendant No. 3 had already disposed of land of his share? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the suit is time barred? OPD

Whether the suit is bad for non-joinder of necessary parties? OPD

Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD

Whether plaintiff has no locus standi to file the present suit? OPD

Whether the plaint has not been properly verified? OPD

Whether Jeeta defendant No. 3 formed a joint Hindu Family and the property in dispute was ancestral of the Jeeta and also coparcenary property of the family? OPD

If issue No. 10 is not proved whether Jeeta and defendant No. 3 are governed by the customary law, whether Jeeta could alienate the property by means of gift, if so its effect? OPD

If issue No. 3 is proved, whether plaintiff has no right to file the suit as alleged in para Nos.15 and 19 of the written statement? OPD

Whether defendant Nos. l and 2 purchased the land in dispute for consideration of a sum of Rs. 10,000/- and spent on stamp and registration too ? OPD

Whether defendant Nos. l and 2 spent Rs. 5,000/- on improvement of the land by means of reclamation and Rs. 5,000/- on the installation of the tubewell, if so its effect? OPD

Whether defendant No. 3 Sultan sold the land in dispute for legal necessity, i.e., for the payment of just debt of Jeeta deceased? OPD

Whether plaintiff is estopped by her own act and conduct? OPD

Relief."

Resultant trial culminated into the judgment and decree passed by learned trial Court vide which, suit filed by Smt. Channo was dismissed. Constrained, thus, Smt. Channo filed an appeal with the result already indicated above

As before the Courts below so also before this Court, the controversy centres only around the property in dispute being ancestral or otherwise and the right of Smt. Channo to succeed to the property. It has been the case of the defendant-appellants that as per the custom prevailing in the locality, ancestral property could not be inherited by a lady and, therefore, the gift made by Jeeta in favour of Sultan and Smt. Channo was invalid. Aforesaid question has since been answered by learned appellate Court by observing as follows:-

"As regards ancestral nature of the property is concerned, the learned Court to hold the property to be ancestral placed reliance on the excerpt Ex.D-2. The first jamabandi in the excerpt is of the year 1890-1900 AD on which Data Ram and Ganga Ram sons of Jag Ram are recorded to be joint owner of the land in suit. The share of Data Ram came to Jeeta his son vide mutation No. 71 dated 7.5.1924 AD. The share of Ganga Ram went to his widow Smt.Sunder and on death of Sunder, it had come to Jeeta. So this excerpt only proves that 1/2 of the land got by Jeeta from his father Data Ram and remaining 1/2 from his uncle Ganga Ram. There is no evidence on the file that Ganga Ram got the above property by inheritance from his father. The first Jamabandi is of the year 1890-1900 AD and is not the first Jamabandi prepared at the time of first settlement. So, presumption of one degree also cannot be raised. This shows that finding of trial Court to the effect that excerpt Ex.D2 proves the entire land to be ancestral is wrong. Rather, this excerpt proves that 1/2 share of the land was ancestral in the hand of Jeeta."

Mr. R.S. Mittal, learned senior counsel who represents the appellants, contends that as per excerpt, Ex.D2 Smt. Sunder died in 1945 and at that time, she having inherited the property on the death of her husband, had only a limited estate and it is only after the Succession Act, 1956, came into being, that her limited estate could nurture into full estate but inasmuch as, she had died far before the Succession Act, 1956 came into being, the property ought to have gone to Data Ram, as succession never remains in abeyance and. if Data Ram is to be the owner of the property, it has to be held as ancestral one in the hands of Sultan, vendor of the appellants. Mr. Mittal further contends that inasmuch as, Sultan was, in any case, owner of 1/2 share by virtue of gift deed, Smt. Channo cannot maintain the suit and in the facts and circumstances of this case, she could only file a suit for partition.

I have heard learned counsel representing the parties and with their assistance examined the record of this case. I do not find any merit in either of the contentions of learned counsel representing the appellants, as noted above. There is no need to go into the question as to whether Smt. Channo was limited owner of the property in dispute and inasmuch as, she died before the advent of Succession Act, 1956, her limited estate would devolve upon Data Ram and in that case the property in dispute in the hands of Sultan would be ancestral inasmuch as, no evidence has been brought on record to show that Data Ram and Ganga Ram had succeeded to the estate of their father, even though in the revenue record and, in particular, excerpt, Ex.D-2, it has been shown that Data Ram and Ganga Ram are the owners of 1/2 share each but that does not show that they became the owners of the property owned by their father. They might have purchased the property. If, therefore, there is no evidence to show that Data Ram and Ganga Ram had succeeded to the estate of their father by way of succession, the property owned by Ganga Ram cannot be said to be ancestral in the hands of Sultan. Mr. R.S. Mittal, learned Senior Advocate, as a last resort contends that half of the property in the hand of Jeeta, in any case, has to be held as ancestral as, at least, half property of the total land owned by him came to him by way of succession from his father Data Ram and, therefore, the gift to the extent of 1/4 share of the property, which will be ancestral property, in any case, would be bad. The argument appears to be impressive in the first blush but when examined in detail, the same is found to have no merit whatsoever. A reading of the gift deed dated 8.5.1962, Ex.PW17/A would show that Jeeta became owner of 59 Bighas and 7 Biswas of land, be it by way of succession either from his father or Ganga Ram through his widow and out of the entire holding, of which he became owner, he did not gift half share to his son and half to his daughter-in-law. He in fact made a gift only to the extent of 36 Bighas 7 Biswas out of total holding measuring 59 Bighas and 7 Biswas and retained to himself 23 Bighas. There is no evidence brought on records to show as to whether he kept to himself 23 Bighas of land which was inherited by him from Ganga Ram or a part of land that he inherited from Data Ram. The joint property measuring 36 Bighas 7 Biswas, that, thus, came to be gifted to his son and daughter-in-law, was both ancestral and non ancestral. Which part out of 36 Bighas 7 Biswas was ancestral and which was non-ancestral, there is no proof of the said fact. In other words, it can well be said that ancestral and non-ancestral part of land has been mixed up in such a way that it is difficult to find out as to which part of land is ancestral or non-ancestral. In the facts and circumstances, as referred to above, it is be held that the entire land is non-ancestral. Reference in this connection may be made to Division Bench judgment in Labh Singh and Anr. v. Smt. Jasso and Anr. AIR 1933 Lah180.

Finding no merit in this appeal, I dismiss the same, leaving, however, the parties to bear their own costs.