1. The following pedigree-table which is borne out by the record. Illustrates the relationship of the parties:
Moti Singh Hakumant Singh
| | | | Baswa Singh
ahna Nanda Chhaba Sunder |
| Singh (Extinot) Singh |
| | | | |
| | Bachna Ram Ram Singh Gurdit Singh
Dharam Singh Karnam Singh
| (Defendant No.1)
Sham Kaur Waryam Singh
(daughter Pltf.) (died before 1951)
The land in dispute, measuring 183 Karnals and 12 Marlas, situate in the revenue estate of village Burj Tharor, is comprised in Khewat No. 63, Kahatuni Nos. 87 to 96 of Jamabandi 1952-53. Sham Kaur daughter of Dharam Singh deceased, instituted the suit for joint possession of the aforesaid land, with these allegations; Karam Singh and Waryam Singh shown in t he above pedigree table, were joint owners of the suit land in equal shares. Waryam Singh died issueless and widowless sometime before 1951. Karam Singh uncle of the deceased, mortgaged different parcels of he landed estate of the deceased in favour of defendants 9 to 22. Subsequently, by a registered deed, dated 30-9-1951 he sold 100 Bighas and 19 Biswas of the mortgaged land in favour of defendants 2 to 8 for Rs. 25,000/-. According to the agricultural custom, which governed the parties in matters of inheritance at the time of Waryam Singh's death, plaintiff succeeded to the estate of Waryam Singh deceased as his sister to the exclusion of Karam Singh and, as such, became owner of on-half share in the joint estate, and the alienations effected by Karam Singh to the extent of Waryam Singh's Share, were illegal and ineffectual qua her right. The contesting defendant resisted the suit inter alia on the ground that the land was ancestral in the hands of Waryam Singh deceased and consequently according to custom Karam Singh had inherited it to the exclusion of the deceased's sister the plaintiff.
2. The trial Court, proceeding under order 17, Rule 3, Civil Procedure code, held that it had not been proved that the land was ancestral, and in consequence, partially decreed the suit. Against that decree, dated 22-9-1960. of the trial court, and appeal was preferred to the District Judge, who called for a report under Order 41. Rule 25. Civil Procedure Code, from the trial court with regard to the issue as to whether the suit land was ancestral. The sub ordinate Judge recorded further evidence produced by the parties and submitted his report dated 16-6-1961. to the effect, that the land in dispute had not been proved to be ancestral qua Karam Singh defendant. The learned District Judge, however, did not agree with that report and held that the evidence on record established that the suit land was ancestral qua the parties concerned. He therefore, allowed the appeal and dismissed the plaintiff's suit with costs throughout. Against that judgment and decree, dated 27-7-1961, the plaintiff has come in second appeal before this court.
3. Waryam Singh, deceased, admittedly died before the coming into force of the Hindu succession Act. 1965. It is common ground that the parties, who are Jats, were at the material time, governed by agricultural custom in matters of alienation and succession. If the land was ancestral, them according to that custom, the collateral, Karam Singh, would exclude the sister of the last male holder from inheritance. If the land was non-ancestral then Sham Kaur, as sister of the deceased, would be the sole heir to his estate to the exclusion of Karam Singh. Thus the whole case hinged around the question whether or not the suit land was ancestral qua Karam Singh and the deceased. Ordinarily, a decision on this question is one of fact and cannot be assailed in second appeal. Where, however, such a finding is based on no evidence or is the result of a misreading of material evidence. It would amount to an error of law, warranting an interference in second appeal. In the instant case, as will be presently discussed, the finding of the learned District Judge on this point is based on conjectural grounds, coupled with a gross misconstruction of the revenue record which was the crucial evidence on this issue.
4. It is well settled that all property is presumed to be non-ancestral or self-acquired in the hands of the owner, and a heavy and serious onus rests on the person asserting it to be not so. Under Punjab Custom, the expression 'ancestral property' has a special connotation. It is not sufficient to prove that the last male-holder had inherited it from his grand-father, and as such it was his ancestral property. It has to be established further that it had devolved from the common ancestor of the parties. That is to say, the party asserting it to be ancestral has to show:--
(a) that it was owned by the common ancestor; and
(b) that it had descended to the party or parties concerned by inheritance and in no other manner.
Both these elements are positive and if either of them is missing the land cannot be said to be ancestral. Both of them must be cogently established and the law does not accept mere conjectures, surmises or assumptions as a substitute for proof. The best way of doing it is by adducing direct proof, in most cases, pertaining to the territories of the erstwhile united Punjab where the first regular Statement took place in the sixties of the last entry, such direct proof may be forthcoming from the revenue records. However, sometimes the land has to be traced to a common ancestor in hoary antiquity, and for doing so, evidence of authentic revenue record may either a scarce or non-existent. Such may be cases pertaining to the territories of the former State of Pepsu where the first regular Statement took place towards the advent of the Twentieth Century. The courts, therefore, have sometimes accepted the establishment of certain circumstances as presumptive proof of ancestral property.
5. In some of the earliest reported decisions on the subject, proof of even a solitary circumstances of an inconclusive character, was accepted as presumptive proof of the ancestral nature of the property. For instance, mere mention of the name of the common ancestor in the pedigree-table prepared at the time of the Settlement, was held sufficient for raising such a presumption. (See Jiwan Singh v. Har Kaur, 1914 Pun Re 41=(AIR 1914 Lah 279)). In some old cases (e.g. Natha Singh v. Mangal 1914 Pun Re. 90=(AIR 1914 Lah 373) and Umra v. Khottu, (1921)62 Ind Cas 984 (Lah) ) The view taken was that if it was shown that the land was situated in a village founded by the common ancestor of the parties, generations ago, it could be inferred that it was ancestral, In the latter decisions. However, a tendency to whittle down the scope of such presumptive proof is clearly discernible. Thus, in Jhanda Singh v. Mt. Banto, ILR 8 Lah 584=(AIR 1927 Lah 477). Tek Chand J. Said 'If however, the remarks in 1914 Pun Re. 41=(AIR 1914 Lah 279)........... were intended to lay down a general rule that the mere mention of the name of a person in the pedigree table is presumptive proof of the fact that every piece of land held by his descendants was originally held by him and had descended from his in succession from generation to generation, then I must respectfully dissent from it. 'Similarly, in Inait Ali v Mohammad Hussain, AIR 1936 Lah 346; Ghulam Ghaus v. Malang Khan AIR 1940 Lah 503; Dasaundhi v. Mt. Rabiah. ILR 17 Lah 218=(AIR 1935 Lah 648) and Nuru v. Najabat AIR 1950 Lah 141, It was laid down in variance with the old view--that the mere fact that the village had been founded in remote antiquity by the common ancestor of the parties cannot give rise to the presumption that the land in their possession is ancestral, because since the death of the common ancestor, one branch of the family might have acquired from another, the portion of the land now held by it, by sale, gift, pre-emption, prescription or otherwise.
6. As time rolled by, this presumptive proof came to be confined to a few well-recognised circumstances. For example, if it was shown that the name of the common ancestor appeared in the settlement pedigree-table, and the land was held jointly by the branches of the common ancestor, in ancestral shares, and there were no circumstances indicative of self-acquisition by those branches. the land could be presumed to the ancestral. Recent decision reveal a tendency to further erode and narrow down the ambit of such inferential proof and it is now settled that in the absence of any other evidence of a definitive nature such as the foundation of the village by the common ancestor, the presumption that may be raised from the joint ownership of the land by the descendants of the common ancestor, at the first Settlement should not be carried more than one degree up. Since the Customary concept of ancestral immovable property often tips the scales against females in the matter of succession and places fetters on its alienation even by a male holder and it ill accords with the modern ideas of equable treatment and freedom of contract, consideration of public policy and equity have weighed in no insignificant measure with the Courts in circumscribing the scope of such presumptive proof within utmost legitimate bounds.
7. Bearing in mind the law as enunciated above. I pass on to consider the evidence on a record relating to issue I-A, Exhibits D-4, D-6 and D-12 are extracts from the record-of-rights of the first regular settlement of Samvat 1958-59 BK. corresponding to 1902-3 A. D. Exihibit D-11 is a copy of the pedigree-table prepared at that settlement. It shows that at that time, Chhaba some of Moti Singh was dead. According to the Misal-i-Haqiat, Exhibit D-4 the land was then held as under:
Khewat Nos. 59 and 60; (measuring 32 Bighas and 15 Biswas Pukta)Karam Singh and Dharam Singh, (Sons of Kahna in equal shares.) ......... one-halfSunder Singh (son of Moti Singh) .......... one-halfKhewat No. 61 (measuring 36 Bighas and 2 Biswas Pukhta)Karam Singh and Dharam Singh (sons of Kahna and Sunder Singh son of Moti Singh) ........ one-thirdNanda Singh (son of Moti Singh) ........two-thirdKhewat No. 62 (measuring 23 Bighas and 14 Biswas Pukhta)Karam Singh, Dharam Singh and Sunder Singh aforesaid. ........ two-thirdNanda Singh aforesaid. ........ one-third
The land in dispute is admittedly out of the aforesaid Khewats 59 to 62. It will be seen that though Nanda Singh son of Moti Singh was alive at the time of the Settlement, he did not hold any share whatever in Khewats 59 and 60. Further the shares of the descendants in the other two branches of the common ancestor (Moti Singh) in the aforesaid Kewat were not ancestral. This non-ancestral character of the shares and the exclusion of one of Moti Singh's sons, namely, Nanda Singh, from Khweats 59 and 60 is definitely indicative of the land having been acquired by those persons otherwise than by succession. This difficulty was felt even by the learned District Judge, when he said--
'The only difficulty in drawing the inference, for which the counsel for the appellant contends, is that the entire land which fell to the share of the branch of Moti was not owned by all of them in a single Khewat but was owned by them in different shares in different khewats, so much so that in Khewat Nos. 59 and 60 Nanda is not a co-sharer at all.'
To tide over this difficulty, the District Judge called in aid the tall conjecture that there was 'some mutual arrangements amongst the members of the branch of Moti Singh to hold the land which they got from their ancestor at a private partition or division with Gurdit Singh, representing the other branch.'
There was absolutely no foundation in evidence for this surmise.
8. Mr. Malook Singh, learned counsel for the contesting defendant-respondent pointed out that if these joint khatas 59 to 62, held by all or some of the descendants of the common ancestor. Moti Singh, were to be partitioned according to the shares indicated therein, then the holdings of all the branches of Moti Singh would be almost equal. By calling in aid this fiction, the learned counsel attempts to bring his case within t he ratio of Mt. Maryan Bibi v. Ghulam Muhamad, AIR 1924 Lah 175. where it was laid down that if at the first settlement the holdings of various branches of the common ancestor were almost equal and one khata was being held by all the branches jointly. It was sufficient to raise the inference of the land having devolved from the common ancestor. According to the counsel, the holdings of the descendants of Moti Singh, on partition will work out as below:--
Khewat No. with area. Holding of Karam singh Holding of Holding of & Dharam Singh. Nanda Singh. Sunder Singh.-----------------------------------------------------------------------------------------------------------------------------------------------Big: Bis: Big: Bis: Big: Bis:59 & 60 measuring 32 Bighas & 15 Biswas 16 71/2 - - 16 71/2 61, measuring 36 Bighas and 2 Biswas 06 1/3 24 1-1/3 06 1/3 62 measuring 23 Bighas and 14 Biswas 07 18 07 18 07 18 ---------------------------------------------------------------------------------Total: 30 06 32 00 30 06
In this manner--contends the counsel--the holdings of all the branches of Moti Singh would be almost equal, there being a negligible difference of 1 Bigha and 14 Biswas.
9. The contention, not being based on terra firma, but on imaginary premises, must be repelled. The fact remains that at the time of first regular settlement all the three branches of Moti Singh neither held equal areas separately, nor jointly in ancestral shares. But different khewats were held differently by some or all the three branches in non-ancestral shares. This circumstances effectively stands in the way of presuming that the land had descended to them by succession and in no other manner. It did not exclude reasonable probability of self-acquisition by the descendants of the common ancestor.
10. Mr. Malook Singh further points out that Khewat No. 64 was jointly held by the two branches of Moti Singh and Hakumat Singh i.e. the sons of the higher common ancestor. Kehar Singh in ancestral shares; while Khewat No. 65 was held by the descendants of Kehar Singh and many other persons. Counsel maintains that the area held by the descendants of Hakumat Singh in Khewat No. 63 was almost equal to that held by the descendants of Moti Singh in Khewats 59 to 62; and that this equality in the holdings of the two branches raises presumption that the land was owned by the grand-common-ancestor, Kehar Singh. This argument is of no assistance. We are primarily concerned with Khewats 59 to 62 as the land in dispute is out of the aforesaid Kewats only. Moreover, as discussed above, the non-ancestral nature of the shares of the descendants of the common ancestor. Moti Singh, unmistakably indicates that the land was acquired by them otherwise than by succession.
11. Mr. Malook Singh also cited Gurmukh Singh v. Sadhu Singh, AIR 1951 Pepsu 71, in which according to the learned counsel, on proof of similar circumstances the land was presumed to be ancestral.
Gurmukh Singh's case, AIR 1951 Pepsu 71 is clearly distinguishable on facts. There, the common ancestor was the sole ancestor of the sold founder of the village. In the present case, the Kaifyat Dehi, Exhibit D-3 shows that the interests in the Shamlat Deh were not governed by the traditional shares but possession was the measure of right.
12. For all the reasons aforesaid, I have no hesitation in holding that the defendants had failed to show that the suit property was ancestral in the hands of Waryam Singh deceased qua Dharam Singh, father of plaintiff, and Karam Singh vendor. The plaintiff therefore, has succeeded to the estate of Waryam Singh deceased to the exclusion of Karam Singh defendant, Karam Singh, therefore, had no interest in it or title to that share in the suit land which had devolved to the plaintiff from Waryam Singh deceased. The alienation of that share, therefore, by Karam Singh was totally void. In the result, I would reverse the finding of the learned District Judge and restore that of the trial court on Issue No. 1-A and decree the plaintiff's suit. Since the decision of the case turns on law point and it is hard case for the vendee-defendants. I would leave the parties to their own costs throughout.
13. Appeal allowed.