# [1962] 1 S.C.R. 176

- **Citation:** [1962] 1 S.C.R. 176
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 492 of 1958
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1962-1-s-c-r-176-1982
- **Pages:** 5

## Headnote

176
SUPREME COURT REPORTS
[1962]
I96'
GURBACHAN SINGH AND OTHERS
.... "-
March 6.
Kapur }.
II,
PURAN SINGH AND OTHERS
"(J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.)
Hindu law-Ancestral property-Lands obtained in lieu of
ancostral lands in consolidation proceedings -Area representing
ancestral land, if ancestral.
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.
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.
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.
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.
Attar Singh v. Thakar Singh, (1908) L.R. 35 I.A. 206, referred to.
Haveldar Mihan Singh v. Piara Singh, (1946) 48 P.L.R. 536
and Gurdev Singh v. Desaundhi, A.LR. 1948 E.P. 22, approved.

## Text

176
SUPREME COURT REPORTS
[1962]
I96'
GURBACHAN SINGH AND OTHERS
.... "-
March 6.
Kapur }.
II,
PURAN SINGH AND OTHERS
"(J. L. KAPUR, M. HIDAYATULLAH and J. C. SHAH, JJ.)
Hindu law-Ancestral property-Lands obtained in lieu of
ancostral lands in consolidation proceedings -Area representing
ancestral land, if ancestral.
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.
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.
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.
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.
Attar Singh v. Thakar Singh, (1908) L.R. 35 I.A. 206, referred to.
Haveldar Mihan Singh v. Piara Singh, (1946) 48 P.L.R. 536
and Gurdev Singh v. Desaundhi, A.LR. 1948 E.P. 22, approved.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
492 of 1958.
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.
Achhru Ram and K. L. Mehta, for the appellants.
I. M. Lal and Mohan Lal Aggarwal, for respondents
Nos. 1 to 4.
1961. March 6.
The Judgment of the Court was
delivered by
KAPUR, J.-This appeal arises out of the judgment
and order of the High Court of the Punjab reversing
'
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.. ,
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..
l S.C.R. SUPREME COURT REPORTS
177
in second appeal the decree of the District Court and
z96z
thus dismissing the plaintiffs' suit for declaration. In
, -h-s· h
d
d
d h
,
,
.
't ,
Gu>"ac an ing
or er to un erstan t e quest10n rn controversy 1
IS
& Olhm
necessary to set out the following pedigree:
v.
Milkhi
J-luran Singh
[
& Others
I
Gulab Singh
(dead)
I .
Mangal Smgh
(testator)
I
Harnam Singh
,j
Himmat Singh
I
I
I
Mehtab Singh
I I
I
Lalu
Shern
(dead)
(dead)
I
Sohel Singh
(Plaintiff No. r)
I
Fattu
Leekar (dead)
I
Nathu Singh
I I
I
Waryam Singh
(Plaintiff No. 2)
.
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)
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
Kapur J.
178
SUPREME COURT REPORTS
(1962]
r96r
An appeal was taken against this decree to the DisG 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.
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.
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 .
h
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.
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:-
"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."
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.
(1) (1908) L.R. 35 I.A. 206, 211.
180
SUPREME COURT REPORTS
[1962]
196,
It was then argued that as the land claimed had
Gurbachan Singh been consolidated and both ancestral and non-ances-
& Others
tral land had got mixed up it cannot be said as to
v.
what portion is ancestral and what is non-ancestral.
Puran Singh
This again is not a correct approach to the question.
& Others
Where land has been consolidated and in lieu of
Kapur 1.
ancestral lands and non-ancestral land a consolidated
area is 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. It was so held in Haveldar 1Wihan Singh v.
Piara Singh(') which is a decision of Abdul Rashid
and Mehr Chand Mahajan, JJ. (as they then were).
The same view was taken in a later judgment of
the East Punjab High Court in Gurdev Singh v. Dasaundhi (') where it was observed:-
"However, where the ancestral portion of the
land s(l given or thrown was by no means negligible
and bore a definite proportion to the whole of tho
land there can be no difficulty in apportioning the
land acquired according to the areas of the two
classes of such land, namely ancestral and nonancestral."
The District Judge in our view rightly held that
28 Kanals and 3 Marlas were ancestral and he has
rightly decreed the suit qua that portion.
The appeal therefore succeed; and is allowed, and
the decree of the District Judge is restored with costs
in this Court and in the High Court.
Appeal allowed.
(1) (1946) 48 P.L.R. 536.
(2) A.I.R. 1948 E.P. 22. 25.
..