BAKHTAWAR SINGH ETC Vs. SOHBI

JUDGEMENT

(1.) In order to appreciate the facts giving rise to this second appeal, it is necessary to set out the pedigree-table of the parties which is as under :-

(2.) Land measuring 9 bighas 3 biswas comprised in Khasra Nos. 119 min. 119 min and 119 min was willed away by Mahan Singh in favour of Sohbi on the 1st August, 1953. Mahan Singh died on the 2nd of May, 1955, and after his death the Will was got registered. On the 22nd of May, 1956, the present suit was filed for possession of two-third of the suit land by the plaintiff, who are the son and grandsons of Mahan Singh through Smt. Veero. The allegation was that the land was ancestral and it could not be willed away by Mahan Singh. In the trial Court the matter relating to the parties being governed by the rule or chundawand was not pressed. The only point that was agitated there was with regard to the nature of the property. The trial Court held that the land in dispute was ancestral and, therefore, it could not be willed away by Mahan Singh with the result that a decree for two-third of the land was granted to the plaintiffs. The defendants appealed and on appeal the lower appellate Court modified the decree of the trial Court to the extent that it granted a decree for possession of the trial Court of 2/9th of land instead of 2/3rd on the ground that on partition the entire land fell to the share of Mahan Singh and, therefore, 2/3rd of it is non-ancestral because at the time of division non-ancestral land was also divided. The plaintiffs appeal.

(3.) In my view this appeal must succeed. The rule is firmly settled, that, that property is ancestral which has come from the common ancestor by descent. In the present case the land was held by Attar Singh in the year 1908-9. On his death it descended to his sons by inheritance and this fact is mentioned in the settlement record for the year 1912-13 and in the remarks column it is stated that the land has come by descent. In the year 1922-23 the sons of Attar Singh partitioned this land and the entire three Khasra numbers in dispute which are undoubtedly ancestral fell to the share of Mahan Singh. By what process they ceased to be ancestral is hard to comprehend. The land had come to Mahan Singh by descent. It was held by Attar Singh, the common ancestor, and it must, therefore, be held to be ancestral. It was held in Ghulam Muhammad V/s. Gauhar Bibi, I.L.R 1 Lah. 284, at page 289 as under -