Appeal No 490 of 1962
Appeal by special leave from the judgment and order dated October 20 1959 of the Punjab High Court in Regular Second Appeal No 1591 of 1959
Kartar Singh Chawla and Harbans Singh for the appellants
I M Lal and M R K Pillai for the respondents
March 24 1964
The Judgment of the Court was delivered by HIDAYATULLAH J
This is a defendants  appeal by special leave against the order of the High Court of Punjab dated October 20 1959 dismissing summarily second appeal filed by the appellants
The suit was filed by the respondents for possession of a plot a house and a Kaur and half share in certain lands as preferential heirs of one Pohla after the death 431 of Pohla s widow Punjab Kaur on February 7 1952
The plaintiffs are Mst
Nikko sister of Pohla and Jarnail Singh son of Mst
Har Kaur who was another sister of Pohla
The first appellant Mara is a collateral of 4th degree of Pohla and the other two appellants are Mara s sons
The following genealogy gives the relationship of the parties Sualtani       Sohela Baghaila     Mara defendant No1   Pir Bux Jaimal Sunder   died sonless   and wifeless      Mohinder Singh Major    Singh Pohla Mst
Har Kaur Mst
Nikku defendant defendant son daughter alias Punjab No2 No3   Kaur daughter   wife of Santa Shrimati Jarnail son Singh Jat Punjab of Arjun resident of widow Plaintiff Ayali Kalan No2 No2 Plaintiff No2 The parties are Jhalli Jats of village Chomon Tehsil and District Ludhiana
The plaintiffs claimed that the property was non ancestral and according to the Riwaj applicable to the family sisters excluded collaterals in respect of both ancestral and non ancestral properties
It appears that after the death of Panjab Kaur Mara got one of the fields mutated in his own name and thereafter took possession of the whole property
He made gifts to his sons of some of the properties and that is why they were joined in the suit
Mara and his elder son Mohinder Singh filed a joint written statement in which they raised many pleas the details whereof need not be given here
They claimed that according to the custom applicable to the family sister and sister s sons were excluded from inheritance in respect of properties whether ancestral or nonancestral
They however claimed that the property was ancestral and denied the genealogy
The Subordinate Judge Second Class Ludhiana framed six issues of which issues No 2 3 and 4 alone are important in this appeal
Those issues are 2
Whether the property is ancestral qua Pohla and Mara 3
Whether the question of the nature of the property is material for the decision of tons case 432 4
Whether the plaintiffs are preferential heirs to the estate of Mst
Panjabo widow of Pohla The parties led voluminous oral evidence in the case but the Subordinate Judge did not rely upon it
We have not been referred to any portion of this evidence in this appeal
The learned Subordinate Judge held that the suit lands were not ancestral and further that no evidence was produced to prove that the other properties were ancestral
On the third issue he referred to question No 52 from the Riwaj i am relating to the settlements of 1882 and 1909 1910 Exts
and D 2 in which it is stated that among the Jhalli Jats of Tehsil Ludhiana sisters or sisters  sons never succeed
He however held on the authority of Ahmad vs Mohammad and others1 that since question refers only to ancestral property and that the nature of the property was thus material
On the fourth issue he held on the strength of the answer to question No 52 that sisters and their sons were excluded from ancestral property but as the answer was not applicable to non ancestral property the personal law would apply unless special custom was proved
He therefore placed the burden on he defendants relying upon Harnam Singh vs Mst
Gurdev Kaur 2 MSt
Sukhwant Kaur vs section Balwant Singh and others3 and Mst
Jeo vs Ujagar Singh4 As he had already rejected the oral evidence and there was no other proof that the property was ancestral he decreed the suit
On appeal the District Judge Ludhiana remitted three issues to the trial Judge and they were as follows Issue No 4 Whether there is any custom by which the parties are governed according to which the plaintiffs are entitled to succeed to the ancestral as well as non ancestral left by the Pohla in preference to Mara defendant Issue No 4A Whether under the custom by which parties are governed the defendant Mara is a preferential heir to the plaintiffs in respect of the ancestral as well as non ancestral property of Pohla deceased 1 AIR 1936 Lah
2 3 AIR 1951 Simla 242
4 433 Issue No 4B If the custom set out by the parties is not proved whether the plaintiffs are preferential heirs to Mara defendant under personal law applicable to the parties On these issues the report of the Subordinate Judge First Class Ludhiana was against the contention of the defendants
The learned District Judge held in agreement with the Subordinate Judge that the lands in suit were not ancestral and he held also that there was no evidence to show that among the Jhalli Jats of Ludhiana collaterals excluded sisters and sisters  sons in respect of non ancestral property
He referred to Exts
9 10 12 and 13 which were judgments in other cases as evidencing the contrary
He accordingly dismissed the appeal
The Second appeal filed thereafter was dismissed summarily by the High Court
The first question to decide is whether these lands are ancestral or non ancestral
The concurrent finding of the two courts below is that none of the properties in dispute is ancestral
The High Court prima facie saw no reason to differ from any of the conclusions of the courts below
It is contended on the strength of a Kafiat of Thulla Malla prepared at the settlement of 1882 that this land came into possession of one Sekhu who was admittedly a common ancestor in the family and the property which is now in dispute must be regarded as ancestral
It is contended that the finding is vitiated because the two courts below did not read this Kafiat alongwith the extracts from the Records of rights of the years 1882 and 1909 1910 in which the names of Jaimal and Sunder sons of Baghela and of Pir Bux son of Sohila are shown as persons in enjoyment of half shares in these lands
It is argued that the lands in suit are thus proved to be ancestral as they belonged to Sekhu the common ancestor and the Riwaj i am as disclosed in question No 52 applies to the case
It appears however from the Kafiat as well as the Record of Rights that these lands were once abandoned and when people came back Sekhu got possession of some lands but in addition to these Sekhu s descendants had acquired the share of one Dalpat in the Thulla and subsequently the entire estate of another holder namely Maidas was purchased by Jaimal Sunder and Sohila
This shows that the lands in dispute are not entirely ancestral but are made up of lands which may be described as ancestral and non ancestral
Now it has been ruled in the Punjab consistently that where lands are so mixed up that the ancestral and nonancestral portions cannot be separated they must be regarded 434 as non ancestral unless it is shown which are ancestral and which are not
This was laid down by the Privy Council in Avtar Singh vs Thakar Singh1
It was held by Mr Justice Kapur as he then was in Indar Singh vs Gulzara Singh and others2 basing himself upon Saif ul Rahman vs Mohammand Ali Khan3 and Jagtar Singh vs Raghbir Singh4 that land ceases to be ancestral if it comes into the hands of an owner otherwise than by descent
Once these conclusions are reached it is quite obvious that the decision of the District Judge not to apply the answer to question No 52 to non ancestral land was right
It may be mentioned that the answers to questions refer to ancestral property only and this is now firmly established
In fact it was not denied at the hearing
It is however contended that there are decisions to show that the right of the collaterals was recognised in respect of even non ancestral land to the exclusion of sisters and their sons
No ruling from the Law Reports has been brought to our notice
Some cases from the Ambala and Amritsar Dis tricts are cited but those obviously cannot be any authority because as is well known custom in the Punjab changes from district to district tehsil to tehsil and pargana to pargana
It has been ruled in this Court that paragraph 24 of Rattingan s Digest which excludes sisters from inheritance from non ancestral property is too widely stated
See Ujagar Singh vs Mst
Jeo5 and Waryam Singh and Others vs Smt
Sukhi and another Civil Appeal No 452 of 1961 decided on April 23 1963
The learned District Judge cited some instances in which the sisters and sisters  sons were allowed to succeed in preference to collaterals
One of the documents filed by the defendants in the suit Ext
D 6 also supports the contention of the respondents
In this view of the matter it cannot be said that the application of the personal law to the family by the courts below was erroneous
It is contended lastly that the rulings only show that collaterals of 5th degree are excluded and there is no case showing that a collateral of 4th degree was excluded
If personal law applies as it does a collateral of the 4th degree is also excluded
In our judgment this appeal must fail and is accordingly dismissed with costs
Appeal dismissed
1 35 IA 206
2AIR 3 ILR 4 ILR 5 1959 Supp 2 SCR 781


Summary:
Claiming inheritance to the properties of one P a Jhalli Jat of Ludhiana Tehsil the respondents who were P s sister and sister s son filed a suit against the appellants P s collaterals
The Subordinate Judge decreed the suit and an appeal to the District Judge was dismissed
They held that the lands in suit were not ancestral and that there was no evidence to show that among the Jhalli Jats of Ludhiana collaterals excluded sisters and sister s son in respect of non ancestral property
An appeal to the High Court was also dismissed
Held i Where lands are so mixed up that the ancestral and non ancestral portions cannot be separated they must be regarded as non ancestral unless it is shown which are ancestral and which are not
Avtar Singh vs Thakar Singh 35 IA 206 applied
Land ceases to be ancestral if it comes into the hands of any owner otherwise than by descent
Inder Singh vs Gulzara Singh AIR 1951 Punj
345 Saif ulRahman vs Mohammad Ali Khan ILR and Jagtar Singh vs Raghbir Singh ILR  referred to
ii The application of the personal law to the family by the courts below was correct and paragraph 24 of Rattingan s Digest which excludes sisters from inheritance from non ancestral property is too widely stated
Ujagar Singh vs Mst
Jeo 1959 Supp 2 SCR 781 and Waryam Singh vs Smt
Sukhi CA No 45261 decided on 23 4 1963 non reportable referred to