NIRU Vs. SHRIMATI JHANJRO

JUDGEMENT

(1.) The only question involved in this appeal is whether the courts below are right in holding that half the land held by Hazari and Khasra Nos. 400 and 497/229 were non-ancestral. The relevant facts relating to the dispute are shortly these; Mangu was the last male holder of the disputed land. On 4th of January 1950 his wife Mst. Bhajno made a gift of the land in suit in favour of her step daughter Mst. Jhanjro. In April 1950 the donor died. Punun claiming to be a collateral of the last male holder instituted the present suit in May 1950 for possession on the ground that the gift was not valid.

(2.) The counsel for the parties made a joint statement in the trial Court that the plaintiff would be entitled to succeed to the ancestral land while the non-ancestral land would go to the donee. As stated above, both the trial Court and the learned strict Judge, have held that half the land in suit other than Khasra Nos. 400 and 497/229 is ancestral qua the plaintiff with the result that the plaintiff's suit with respect to Khasra Nos. 400 and 497/229 and qua half of the remaining land has been dismissed. The plaintiff's son, Niroo, has come up on appeal, Punun having died somewhere in May 1952.

(3.) The learned counsel for the plaintiff-appellant has contended that the history of the land as contained in Exhibit P. 9 conclusively establishes that the land in suit has come from Manna the common ancestor. According to him on Manna's death his estate was inherited by five sons as Faqiria had died issue-less. At the time of Jawahari's death his entire estate was taken by Thakur and Moti. Hira did not take any share. Amolak, according to the counsel, absconded and his share of land was taken possession of by Thakru, Moti and Hira, the division amongst them being according to possession. This, the learned counsel contends, explains the absence of proper shares. Mr. Mahajan has submitted that the land was without doubt owned by Manna and had come into the hands of Mangu by reason of relationship. The mere fact that Hira did not care to take any share at the time of Jawahari's death would not change the ancestral character of the land in suit. Reliance has been placed by the learned counsel on Natha Singh v. Harnam Singh, 31 PR 1894, where it has been observed that property, originally belonging to a common ancestor, does not cease to be ancestral because it comes to a descendant of that common ancestor through abandonment of it by a near relation rather than by simple inheritance. The next case to which my attention has been invited is Attar Singh v. Thakur Singh,1908 99 PunLR 1908, where Lord Collins delivering the judgment of the Judicial Committee has observed at page 128-