HAZARA SINGH Vs. CHUHAR SINGH

JUDGEMENT

(1.) THIS second appeal by the vendee arises out of the conflicting decisions of the Courts below regarding the ancestral character of the house in question and the legal necessity for which it was sold. One Gurmukh Singh of village Phulera sold his house on 8 -8 -2001 for Rs. 600 to Hazura Singh. Chuhar Singh a fourth degree collateral of the vendor brought a suit on 21 -8 -2003 impugning the validity of the alienation urging that the house was ancestral and that it had been transferred without any justifiable necessity. The Defendant denied the ancestral character of the house and maintained that Gurmukh Singh had sold it for purposes that were recognised by custom to be necessary. In addition the plea was taken that as the vendor had two sons alive the Plaintiff had no locus standi to attack the sale. The learned District Judge in differing with the trial Court regarding the nature of the property was, it appears, influenced by the wrong impression that the house was situate, in some field which the documentary evidence produced by the Plaintiff suggested was ancestral. The deed of sale recited that the house was situated in the Abadi of the Village and the copy of the Khana Shumari for the year 1907 also shows that, Albeal, common ancestor of the Plaintiff and the vendor, was in possession of six houses in the Abadi out of which the present house is claimed by the Plaintiff to be one.

(2.) MR . Kishori Lal states that he cannot support the finding of the lower appellate Court regarding the location, of the house. The learned District Judge has not adverted to the oral evidence examined in support of issue 2 but he has all the same held the house to be ancestral because there is according to him, a presumption of the land in the possession of the vendor being ancestral. If the property in dispute were a homestead existing on ancestral agricultural land the position might have been different. In that case it could justifiably be regarded to be an appendage of such land. But the ancestral character of a house in the Abadi has to be established by evidence showing that it had devolved upon the alienor from a common ancestor. Saddo Singh v. Mt Basant Kaur 3 J.C. Rep. Patiala 43 is an authority for the view that a house in possession of an agriculturist cannot be held to be ancestral merely because the land in his possession has been found to be ancestral and that the ordinary rule is that it must be proved by independent evidence that it is ancestral otherwise it must be assumed to be self -acquired.

(3.) I accept the appeal with costs, reverse the decree of the lower appellate Court and restore that of the trial Court.