1. This is a plaintiff's appeal against a decree passed in appeal by District Judge Bhatia of Ludhiana dated the 23rd August, 1948 affirming a decree of the trial Court.
2. In order to understand the case it is necessary to give the pedigree-table of the vendor which is as follows :
| | | | | |
Nunabi Uttam Singh Dalla Dayala Khushal Niha Singh
| | | | Singh (died childless)
| | Ishar(adopted son Suder Singh __|______________
| ______________|______ died childless) (adopetd son)| |
| | | Babu Bheru (widow Partap
| Harnam Singh Fateh Singh | kaur defdt)
| | | _________________|_____________________________
| ___|________________ | | | | |
| | | | Arjan Singh Kartar Singh Amar Singh Navraj Singh
| Bhopindar Bharpoor | (defdt.) (defdt.) (plff.) (defdt.)
| | | |
| Dharam Singh(plff.) 0Nahar Singh(plff.) KartarSingh (plff.)
| | | |
Mohla Ishar Singh Prem Singh Sunder
| (adpted by Dalla) (defdt.) (adopted by Dayala)
Bhagwan Singh Ajaib Singh
3. On 26-5-1943 Sundar Singh, the adopted son of Dayala sold 9 'bighas 17 'biswas' and 10 'bis-wansis' of land situate'in village Sahnewal Khurd to defendants Nos. 5 and 6 for a sum of Rs. 4,500/-. On the 11th March 1944, the plaintiffs who are the collaterals of Dayala, the adoptive father of Bunder Singh, brought a suit for declaration that the sale would not affect their reversionary rights on the ground that the land in dispute was ancestral and that the sale was without consideration and necessity. Both Courts have held the land to be non-ancestral, the appellate Court has also held the sale to be not for necessity and the suit speculative and therefore both Courts have dismissed the plaintiffs' suit.
4. In appeal it is submitted that the land if it was ancestral in the hands of Dayala remains ancestral in the hands of Sunder Singh and therefore the plaintiffs have the right to control an alienation made by Sunder Singh, and reliance was placed in the first instance on 'Fatteh Ali v. Abdullah', 112 Pun Re 1900 where Rattigan, J., held that on the line becoming extinct collaterals have a right of suit; at page 441 the learned Judge said:
'If, then, the property gifted does not. 'ipso facto' of the gift, change its character, if it continues to be the ancestral property of all 'he donor's eel-laterals, --it necessarily follows that, on the death of the donee without male issue, the property, which custom allowed to be conditionally diverted from the hands of those who would otherwise have inherited it must 'when that condition fails' revert to the donor's collaterals as a body. And as such property was not in any proper sense the acquired property of the donee. * *.'
Shah Din, J., in 'DALO V. MOHLU', 87 Pun Re 1909, laid down the same rule. In that case Reju was the adopted son. Reju and his descendant Sundar made a gift. Bishna was the adoptor and his collaterals brought a suit to set aside the gift, and it was held at page 331 that the nature of the property remained ancestral in the hands of Reju if it was ancestral in the hands of the adopter Bishanu. The same rule was laid down by a Division Bench in 'Mehra v. Mangal Singh'. 99 Pun Re 1914. In 'Chanda Singh v. Mt. Banto', 8 Lah 584 the land belonged to one Jhanda Singh. On his death it descended to his daughter's son who had been duly appointed as an heir by Jhanda Singh. In this case it was held at page 592 :
'It it only where the land is ancestral of the ap-pointor and his collaterals that the estate, on the appointee dying sonless, reverts to the appointor's collaterals, for in this latter case the appointer had only a limited power of disposal over the property and his collaterals had a residuary reversionary right in it. * * *.'
In 'Gainda v. Mt. Jai devi', ILR (1944) Lah 519 FB at pp. 524-525 Abdul Rashid. J., as he then was, said :
'So far as the nature of the property is concerned, the appointment of an heir and a gift stand on the same footing. In the case of gift as well as in the case of an appointment of an heir the property is self-acquired so far as the descendants of the donee or the appointee are concerned. So far as the collaterals of the appointer or the donor are concerned, the property continues to be ancestral in both cases.'
On the authority of these cases Mr. Gosain submits that his clients had a right to bring this suit to challenge the alienation made by Sundar Singh.
5. In reply Mr. Wadehra has submitted that there could not be reversion in this case as Sundar Singh is not issueless. He has got a daughter and daughter's son and the land in the hands of the appointer was not ancestral. I shall first take up the question whether the land was ancestral or not.
6. The learned District Judge seems to be doubtful as to whether the land was ancestral or not, but the doubt really was whether the land which had come from Nidha, father of Ram Singh and brother of Dana was ancestral or not. The learned Judge has stated as follows:
'The common ancestor of Dan Singh and Ram Singh mentioned in the settlement of 1852 was Bakhasha (really Bakhta), and it has not been established that the land came from him by means of inheritance. I would have been inclined to hold the land as ancestral, because the Khasra numbers in the two Settlements of 1852 and 1832 tally, but for the fact that in the statement of the proprietors recorded at the Settlement of 1882 it is clearly mentioned that the land was acquired by Nidha and Dan Singh sons of Bakhta (see Exs. P. 7 and P. 8) * * * Under the circumstances, it is not satisfactorily established that the land in dispute is ancestral.'
Mr. Gasain submits that Ex. P. 8 gives the total land held by the family and half the land which belonged to Dana and which has subsequently come to the family by inheritance is traceable. But in this connection there are three Khasra numbers which Mr. Wadehra submits have not been traced. They are 1087/946, 1086/946/310 & 1205/1 to 872. It appears that Khasra No. 1087/946 has been traced but there is some doubt with regard to Khasra Nos. 1205/1 to 872 and 1086/946/310. I must therefore hold that the whole of the land which was held by Dana and was in hands of Dayala and has subsequently come to Sundar Singh is ancestral excepting Khasra No. 1205/1 to 872 and khasra No. 1086/946/31Q which comes to 1 'bigha', 4 'bis-was' and 6 'biswansis'. In other, words, half of the land in dispute with the exception of the Khasra numbers which I have mentioned is ancestral and is therefore subject to the control of the collaterals.
7. It was finally submitted by Mr. Wadehra that the suit is a speculative one because the daughter and daughter's sons are there and therefore the collaterals cannot bring a suit for controlling the sale. Reliance is placed on a Fun Bench judgment in 'Umaid Bahadur v. Udai Chand', 6 Cal 119, But that case is not of much assistance in this case because there the collaterals or rather the reversioners had precluded themselves. Reference was then made to Mt. Viranwali v. Kundan Lal', AIR 1928 Lah 267, where it was held that a suit for declaration by a Hindu reversioner must always be brought by a reversioner nearest in succession, said if the nearest reversionary heir refuses, without sufficient cause, to institute proceedings or he has precluded himself by his own act or conduct from using or has colluded with the widow the next presumable reversioner will be entitled to sue and he must state in his plaint the circumstances under which he claimed to sue in the presence of the nearest reversioner.
This case cannot assist us in the present case for the simple reason that the only persons who are alive in the adoptee's family are a daughter and daughter's sons, neither of whom has any right to control the alienation made by Sundar Singh. Even otherwise 'qua' them the property will be non-ancestral and they will not have any right to challenge the alienation, and therefore cases which deal with the rights of remote reversioners not being able to sue in the presence of nearer reversioners cannot be of any help in determining the matter which is now before me.
8. It was next submitted that there is no reversion where there is a daughter and a daughter's son. This really forms part of the same point which I have discussed above. There may not be any reversion but there is a residuary right in the collaterals and it is in exercise of that right that this suit for challenging the alienation lies and I therefore am unable to agree with this submission either.
9. In the result, this appeal succeeds with regard to half the land sold with the exception ofthe Khasra numbers which have been mentionedabove. As both parties have succeeded only partially they will bear their own costs throughout.