Kapur Chand and another vs Des Raj

Pritam Singh Pattar, J.—This is a second appeal filed by Kapur Chand and Dharshan Kumar, sons of Tarloki Nath plaintiffs-appellants, residents of village Pipli, Tehsil Sirsa, District Hissar, against the judgment dated 1st August, 1968 of the Additional District Judge, Hissar whereby he accepted the appeal of Des Raj defendant-respondent and setting aside the judgment and decree of the trial Court dismissed their suit with costs throughout.

The facts of this case are that Tarloki Nath, father of the plaintiffs-appellants was owner of the land in suit and he sold it to Des Raj defendant-resident for Rs. 14.000./- on the basis of a registered sale deed dated 9th September, 1957. Kapur Chand and Darshan Kumar plaintiffs, who are the sons of the vendor Tarloki Nath filed this suit for declaration to the effect that the land in suit was ancestral qua them, that they and their family were governed by agricultural custom according to which ancestral immovable property could not be alienated without consideration and legal necessity, that the sale in suit was effected by their father without consideration and legal necessity and it would not affect their rights after the death of the vendor. In the alternative it was prayed, that if they were not proved to be governed by agricultural custom, then a decree for possession of this land may be passed in their favour under the Hindu law as the sale was made without consideration and legal necessity and that the vendor was addicted to gambling and drinking. The suit was resisted by the defend ant-vendee on various grounds. It was admitted that the plaintiffs and their family were governed by the agricultural custom. On the pleadings of the parties, the following issues were framed by the trial Court:--

(1) Whether the suit land is ancestral qua the plaintiffs and the vendor ?

(2) Whether the sale was for consideration and legal necessity ?

(3) Whether the sale was an act of good management ?

(4) Whether the suit is collusive as alleged ?

(5) Relief.

The Subordinate Judge decided issue No. 1 in favour of the plaintiffs and decided issues Nos. 2, 3 and 4 against the defendant. As a result, he passed decree for declaration in favour of the plaintiff as prayed for in the plaint. Des Raj defendant vendee filed an appeal against this decree in the Court of the District Judge, Hissar, which was entrusted for disposal to the Additional District Judge. The learned Additional District Judge held that it was not proved that the land in suit was ancestral qua the plaintiffs and he, therefore, reversed the finding of the trial Court on Issue No, 1 and decided it against the plaintiffs. On issue No. 2, he affirmed the finding of the trial Court. The decision on Issues Nos. 3 and 4 was not contested before the Additional District Judge. As a result, the appeal was accepted and the decree of the trial Court was set aside and the suit of the plaintiffs was dismissed with costs throughout. Feeling aggrieved, the plaintiffs filed this second appeal in this Court.

The following pedigree table of the family of the plaintiffs and their father will be useful in appreciating the evidence regarding the ancestral nature of land in dispute :--

ShriChand

Kanshi Ram

Sarwan Ram

TarlokiNath (Vendor)

CharanDas

SurajBhan

Dev Raj

Hem Raj

KapurChand (Plaintiff)

Darshan Kumar (Plaintiff)

The onus lies heavily on the person who asserts the ancestral nature of the property. Ancestral property as regards sons means property inherited from a direct male ancestor and as regards collaterals means the property inherited from a common ancestor. The plaintiffs in order to establish the ancestral nature of the land in suit must prove that it was owned by the common ancestor of themselves and the alienor Tarloki Nath and that it devolved by inheritance upon the alienor. Sarwan Ram, the grandfather of the appellants and his (Sarwan Ram''s) brother Kanshi Ram, who are the sons of Siri Chand jointly owned land measuring 1214 Bighas in the year 1926-27 vide Exhibits P. 4, P. 5 and P. 6, which are copies of the jamabandi for the year 1926-27, 1930-31 and 1934-35 respectively. Out of this, land measuring 7 Bighas 4 Biswas was Ghair Mumkin while the remaining land measuring 1206 Bighas 16 Biswas was Barani vide Exhibit P. 6.

It appears that prior to the year 1946-47 partition of a major portion of this land took place between the two brothers Sarwan Rant and Kanshi Ram sons of Siri Chand. In the jamabandi for the year 1946-47, whose copy is Exhibit P. 9, Sarwan Ram is recorded as sole owner of 433 Bighas 5 Biswas of the land and regarding 346 Bighas of land the entry in the ownership column of Exhibit P. 9 is that Sarwan Ram had 1/2 share, his brother Kanshi Ram had 1/18 share and the sons of Kanshi Ram had 4/9 share. In the year 1950. Sarwan Ram made an oral gift on 1st November, 1950 of 5/6 share in the land measuring 433 Bighas 5 Biswas in favour of his five sons, Tarloki Nath and others in equal shares and himself retained 1/6th share in this land. The mutation on the basis of this gift deed was attested by the revenue authorities on 21st November, 1950 and its copy is Exhibit D. 2. In pursuance of this mutation order, in the subsequent jamabandi for the year 1950-51, Sarwan Ram was recorded as owner of 1/6th share while his five sons Tarloki Nath, Charan Das, Suraj Bhan, Dev Raj and Hem Raj were recorded as owners of 5/6th share of that land. The five sons were recorded as Malkan Kabza, but Sarwan Ram continued to have share in the Shamilat land pertaining to whole of this land measuring 433 Bighas 5 Biswas. The same entries are found in the excerpt of this land Exhibit P. 15, which was got prepared by the plaintiffs from the Moharrir Patwari working in the Land Records Office of the Deputy Commissioner, Hissar.

Besides this, Sarwan Ram continued to be owner of half share in land measuring 346 Bighas and the remaining 1/2 share of land was owned by his brother Kanshi Ram and his sons, vide copy of the jamabandi Exhibit P. 9. Sarwan Ram did not make a gift of any portion out of the 1/2 share in this land measuring 346 Bighas. The sale in suit took place on 9th September, 1957. Sarwan Ram, the grand-father of the appellants was alive in the year 1955-56 as is clear from the copy of the jamabandi, Exhibit P. 1 for that year. There is no proof on the file that when the death of Sarwan Ram took place.

From the above discussion it emerges that Sarwan Ram had made a gift to his five sons in equal shares of 5/6th share of his land measuring 433 Bighas 5 Biswas and continued to be co-owner of 1/6th share of that land with them. Further, he continued to be owner of 1/2 share of land measuring 346 Bighas along with his brother Kanshi Ram and his sons. Besides this he must be owning residential property and Havelis, but there is no proof on the file that he gifted any portion of those properties to his sons. It is thus established that he did not make a gift of all of his property to his sons. Consequently, this gift of land in suit made by Sarwan Ram on the basis of mutation order Exhibit D. 2 in the year 1950 in favour of his sons did not tentamount to acceleration of succession. In this connection, reference may be made to Jagtar Singh and others v. Raghbir Singh AIR 1932 Lah 85 (DB), wherein it was held as under:--

A person who wishes to surrender his estate to the next heir and thus accelerate the succession must completely efface himself and pass his whole interest in whole estate to the entire body of heirs who would be entitled to take it in the event of his death.

To the same effect was the law laid down in Rangaswami Gounden v. Nachiappa Gounden AIR 1918 PC 196. It appears that Sarwan Ram gifted a part of his land to his five sons in equal share in order to evade the land ceiling laws, which were being contemplated by the Government on or about the year 1950.

In order to prove the ancestral nature of the land the onus lay heavily on the plaintiffs that it was owned by their grand father Sarwan Ram and that it devolved by inheritance upon their father Tarloki Nath the vendor, vide AIR 1949 87 (Privy Council) Lal Singh and another v. Jagir Singh, AIR 1950 EP 179 and Narotam Chand and another v. Mst. Durga Devi (1949) 51 PLR 16 (FB). The rule is 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 connection with the common ancestor, vide Saif-ul-Rahman v. Muhammad Ali Khan (1927) ILR IX Lah 95 which is a Division Bench authority. In Indar Singh v. Gulzara Singh AIR 1951 P&H 345 it was held as under:--

Land ceases to be ancestral if it comes into the hands of an owner, otherwise than by descent (in this case, by gift to sons who would otherwise have inherited it), or by reason merely of his connection with the common ancestor.

In AIR 1928 285 (Lahore) it was held 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 connection with the common ancestor. Similar was the law lay laid down in Gurdit Singh and others v. Mst. Ishar Kaur AIR 1922 Lah 392 Puni v. Devatia AIR 1923 Lah 210 , AIR 1925 87 (Lahore) , and AIR 1925 245 (Lahore) .

In Mara and others v. Mst. Nikko AIR 1964 SC 1321, it was held that land ceases to be ancestral if it comes into the hands of an owner otherwise than by descent.

For the reasons given above, it is held that ancestral property as regards sons, means property inherited from a direct male ancestor and as regards collaterals, means the property inherited from a common ancestor. It is well settled law that property ceases to be ancestral if it comes into the hands of an owner otherwise than by descent or by reason merely of his connection with the common ancestor. If the property is acquired by gift. It ceases to be ancestral except when the gift is made of ancestral property by the donor to the person/persons, who will succeed to it by inheritance on his death and the gift amounts to acceleration of succession i.e. the donor completely effaces himself and makes a gift of his whole property to the entire body of the heirs, who would be entitled to inherit it in the event of his death.

In the instant case, Tarloki Nath vendor got this land in suit by gift from his father Sarwan Ram, who had gifted a part of his property only to his sons. The land in suit, therefore, was self-acquired property of Tarloki Nath and is not ancestral qua the plaintiffs.

Shri B.S. Jawanda the learned counsel for the appellants relied upon AIR 1926 171 (Lahore) wherein it was held that if the gift is to a person who will succeed to it by inheritance apart from the gift property originally ancestral does not become the self-acquired property of the donee. This authority was followed in a Single Bench Authority in AIR 1933 539 (Lahore) . Both the authorties are distinguishable and have no application to the present case. In Pars Ram''s case supra, the land belonged to one Dewa and on his death in was mutated in favour of his widow Mst. Partapo. One Kishan Singh defendant disputed her right to succeed to her husband and the matter was compromised and half of the property was mutated in the name of Kishan Singh and the other half remained in possession of Partapo, Kishan Singh sold this half of the land, which he obtained as a result of compromise with Partapo, By no stretch of imagination, Kishan Singh can be said to have received this land by gift. He got this land as a result of compromise settling the dispute pertaining to the inheritance of Dewa.

In AIR 1926 171 (Lahore) the gift was made by a widow, who was holding the property on a usual life tenure. Under the then prevailing Customary Law, a widow used to inherit the property on a usual life tenure and she used to act as a conduit pipe between the last maleholder and his reversioner, who was to succeed to the land after the death of the widow. Both these authorities are distinguishable and do not apply to the facts of this case. Moreover, these authorites cannot be followed in the face of the Supreme Court ruling and the other rulings of the Lahore and Punjab High Courts relied upon by the respondents and discussed above.

Further the counsel for the respondents contended that if the gift is of ancestral land to an heir by way of acceleration of his succession then alone the land retains its ancestral nature. Therefore, it was incumbent on the appellants to prove that the land in suit in the hand of Sarwan Ram was ancestral. In other words, the onus lay on the plaintiffs to prove that Sarwan Ram had inherited this land from his father Siri Chand. This land was owned by Siri Chand in the years 1919-20 and 1922-23 vide copies of the jamabandis Exhibhs P. 2 and P. 3 respectively. There is no proof on the file that when Siri Chand died. In the jamabandi for the year 1926-27, whose copy is Exhibit P. 4, Kanshi Ram and Sarwan Ram sons of Siri Chand were recorded as joint owners in equal shares of this land. Exhibit P. 15 is the excerpt of this land, which was got prepared by the plaintiffs from the Patwari Moharrir and there is a note in it that in the record room, the bundle containing jamabandis for the years 1922-23, 1926-27, and 1930-31 and 1934-35 was not traceable and, therefore, their entries were not mentioned in this excerpt. However, the plaintiffs appellants produced copies of all these four jamabandis, which are Exhibits P. 3, P. 4, P. 5 and P. 6. As mentioned above, there is no proof on the file that when Siri Chand common ancestor died and how his sons got his land from him. From the fact that his two sons Kanshi Ram and Sarwan Ram were recorded as owners of the land, which was previously owned by Siri Chand, it cannot be presumed that they got it by inheritance. They could get this land by way of gift or sale etc. The onus lay heavily on the plaintiffs to produce the copy of the mutation order pertaining to the succession of Siri Chand but they have not dons so for the reasons best known to them. There is also no note regarding that mutation of inheritance either in the excerpt Exhibit P. 15 or in the copy of the jamabandis Exhibit P. 3 for 1922-23 and Exhibit P. 4 for the year 1926-27. The learned counsel for the appellants relied on AIR 1924 261 (Lahore) , wherein it was held :--

Where the property in suit originally belonged to the common ancestor of the parties, it will be deemed as ancestral when found in possession of a descendant, unless it could be shown that the land had at any time, gone out of the hands of the family and had been reacquired by the descendant or some of his ancestors.

This authority is distinguishable and does not help the plaintiffs. In that case, the plaintiffs were the sixth degree collaterals of the alienor. The full facts of this case arc not given in She reported judgment and it is difficult to ascertain whether this ruling pertained to the earliest settlement pertaining to that village. In the instant case, Siri Chand, common ancestor was recorded as owner of the land in the jamabandi for the year 1922-23. His death took place thereafter and in the subsequent jambandi for 1926-27, his sons Kanshi Ram and Sarwan Ram were recorded as joint owners of this land in equal shares. The evidence regarding his succession, if any, was available, but its non-production has not been explained. Therefore, u/s 114(g) of the Evidence Act, it can be presumed that if the copy of that mutation order had been produced, the same would not have supported the allegations of the plaintiffs. Therefore, it is not established from the evidence on the record that the land in the hand of Sarwan Ram was ancestral. In Jagtar Singh and others v. Raghbir Singh and others supra AIR 1932 Lah 85 (DB), it was held :--

Under customary law ''ancestral property'' means, as regards sons. Property inherited from a direct male lineal ancestor.

Self-acquired property of the donor which he gifts before his death to his son who is adopted by a distant collateral, does not devolve on the donee by inheritance from a male descendant and therefore is not ancestral in his hands qua his own sons. Such property even under Hindu law, is not ancestral.

In Mussammat Raman''s case supra, it was held as under :--

G.H. gifted his self-acquired property in certain shares to his three sons and other relatives, including his son Mir Khan (since deceased) whose share in the property is in dispute in the present suit, brought by Mir Khan''s collaterals against his daughters, daughter. Held, that the property having been gifted to Mir Khan by his father become his self-acquired property.

Since it is not proved that the land in suit was ancestral in the hands of Sarwan Ram, therefore, this land, which was received by Tarloki Nath by way of gift from his father Sarwan Ram is non-ancestral.

For the reasons given above, it is held that the Additional '' District Judge rightly held that the land in suit was not proved to be ancestral qua the plaintiffs and the decision on issue No. 1 is affirmed.

No other point was urged.

There is no force in this appeal and the same is dismissed. There will be no order as to costs.