NARAJAN SINGH ETC Vs. PARSA SINGH ALIAS PARSU

JUDGEMENT

(1.) One Kirpa made a Will of his property including agricultural land and a house detailed in the plaint in favour of the defendant-respondent on 3rd December, 1952. About five years thereafter, the testator died and on the strength of the said will, Exhibit D.2, the defendant-respondent got the suit land mutated in his name. The plaintiff-appellants, who claimed themselves to be reversioners within fifth degree of Kirpa testator, field the present suit, wherein they sought the possession of the suit property and also sought a declaration to the effect that they were entitled to succeed to the property of Kirpa and that the Will in question is invalid inter alia on the ground that land so willed aways was ancestral property as between the testator and the plaintiff-appellants. The suit was resisted by the defendant-respondent and the trial Court framed the following issues -

(2.) The trial Court, on the additional issue (a) above, held that the parties were governed by custom and the custom applicable to them prohibited alienation of ancestral property by will. The lower appellate Court, before whom the finding on the additional issue (a) was not challenged, confirmed substantially the finding of the trial Court on the additional issue (b) regarding nature of the property with the exception of one Khasra No. 1078 situated in village Jhande Majra which the lower appellate Court, unlike the trial Court, found to be non-ancestral. Both the parties filed objections under Order 41, Rule 26, Civil Procedure Code, against the report of the trial Court and that of the lower appellate Court. The plaintiffs have challenged the finding of the Courts below regarding the suit land comprised in Khasra No. 3036 situated in village Majri, of which Kirpa was the occupancy tenant and which right in the said land had been inherited by him from his ancestors on the ground that, in fact, as a result of the acquisition of the ownership rights in the said land by virtue of the operation of law, the same cannot be considered to be the self acquired property of Kirpa. In support of this submission, the learned counsel for the plaintiffs has placed reliance on a Division Bench decision of this Court report in Dalip Singh V/s. Dara and another, 1967 CurLJ 540, wherein the facts involved were that one Bishan Singh possessed land as an occupancy tenant in Pakistan and after the partition, some land in lieu of the land so left in Pakistan was allotted to his three sons on quasi-permanent basis. Later on, they surrendered 40 per cent of the said land and acquired full ownership rights in the remaining 60 per cent. It was held by this Court that 60 per cent land, in which the sons of Bishan Singh acquired full ownership rights, could not be considered to be their self-acquired property because those rights were secured by them after surrendering 40 per cent of the land under their occupancy tenancy which rights were ancestral in nature and the full ownership rights acquired in the 60 per cent land in lieu of the ancestral rights in 40 per cent of the land surrendered by the sons of Bishan Singh have to be considered as self-acquired, because the rights in 60 per cent land are by way of exchange of ancestral rights in 40 per cent land surrendered for acquiring such full ownership rights. The ratio of the above ruling is not applicable to the facts of the present case and that decision is clearly distinguishable as Will be clear from the fact that Kirpa deceased in the present case did not surrender any portion of his occupancy land with a view to secure ownership rights in the other portion of the land under his possession as occupancy tenancy. He secured his rights by operation of law, which also provided payment of certain amount as compensation to the landlord which was made recoverable by the statute as arrears of land revenue. The learned counsel faintly urged that as the compensation to be recovered from the occupancy tenant is dependent on the initiative of the landlord and in this case so far the landlord has not recovered any compensation so it cannot be said that the occupancy tenant secured the ownership rights after payment of some money from his own pocket possession became self-acquired as a result thereof. For one thing, no such plea was taken and the parties had no occasion to lead evidence, but even if the landlord had not so far recovered compensation from Kirpa before he died, the law provides for the recovery of such compensation as arrears of land revenue and what is more, the right of ownership conferred on the occupancy tenant is by operation of law, and the tenancy right merged in the ownership right which right is distinct from tenancy right. This point is made still more clear in a Single Bench decision of this Court Budh Singh alias Nachhatar Singh and others V/s. Shrimati Gurdev Kaur and others, 1968 CurLJ 27, wherein this Court was confronted with a similar problem arising in a case coming from erstwhile Faridkot State. The facts involved in that case were that the Maharaja of erstwhile Faridkot State was the Ala Malik and the status of the tiller of the soil in his State was that of an Adna Malik and the question arose that after the abolition of the Ala Malkiat rights, the property in possession of the Adna Malik whether became his self-acquired property ? In answering that question, Mahajan, J. observed that, in that case, the land could not be considered to be the self-acquired property of the Adna Malik had all the rights of an owner except that he had to pay something to Ala Malik and the further fact that in certain contingency land of Adna Malik reverted to the Ala Malik was considered of no consequence since Ala Malik also happened to be the ruler of the State, and so the reversion of the land in certain contingency to the ruler amounted to escheat. And it was held that the rights enjoyed by an occupancy tenant who had no right of alienation which an Adna Malik had. In the reckoning of Mahajan J. whether the land under the cultivation of an Adna Malik and the occupancy tenant, after the abolition of Ala Malkiat right in the former case and after vesting of the proprietary right in the later case, is to be considered the self-acquired property of that person or not, is dependent on the quality and the extent of rights enjoyed by the tiller falling in the above two categories, and not on the fact as to whether in a given case ownership rights have been acquired with or without payment of compensation. I find myself, with respect, in complete agreement with the view taken by Mahajan J. That being the position, I hold that the land in the possession of the occupancy tenant over which he acquired full ownership rights by the operation of law became self-acquired property in his land and so I find no merit in the submission that the land in question was not the self-acquired property of Kirpa deceased.

(3.) Learned counsel for the appellants has next urged that Khasra No. 1078 situated in village Jhande Majra cannot be considered as self-acquired property of Kirpa deceased and the reasoning employed by the lower appellate Court to hold it so is fallacious. It may be stated here that Khasra No. 1078 is equivalent to two Khasra Nos. 641 and 644, as given in the excerpt, Exhibit P.8 in the year 1952. Khasra No. 641 was owned by one Udia, the common ancestor, while Khasra No. 644 was a Shamilat Deh and was possessed by the Shamilat Deh area, as represented by Khasra No. 644 could not be considered in the ownership of Udia, so when the ancestral and the non-ancestral property is mixed up the whole of the property has to be termed as non-ancestral. The learned counsel urged that since Udia by virtue of his being owner in the village did have some share in the Shamilat Deh land, so the land that later on fell to his share as represented by Khasra No. 1078 should be considered to include only the land which represents the land included in Khasra No. 641 and the other land from Shamilat Deh Khasra, which fell to his share, has also to be considered as ancestral land, I find merit in this contention of the learned counsel and so I hold that, in fact, Khasra No. 1078 is also ancestral and to that extent the finding of the lower appellate Court is erroneous and vitiated, as the same is based on the misreading of the evidence on the record.