Case: Gurbachan Singh And Others Vs. Puran Singh And Others

2. On August 11, 1947, Mangal Singh executed a will bequeathing the property in dispute to Amar Singh defendant No. 1. After the death of Mangal Singh on October 25, 1947, the mutation of his estate was effected in the name of Amar Singh on April 10, 1948, by mutation No. 733. The plaintiffs Sohel Singh, Waryam Singh and Shiv Singh brought a suit for declaration that the will was ineffective against them and for possession of certain parcels of land mutated in the name of Amar Singh. The allegation was that the will was made under undue influence, coercion and fraud and that Mangal Singh had no power to make the will as the land in dispute was ancestral qua the defendants. These allegations were denied and requisite issues were raised. The suit was dismissed by the trial Court holding that it was not proved that the execution of the will was procured by the exercise of undue influence or coercion or fraud and that the land had not been proved to be ancestral. An appeal was taken against this decree to the District Judge who held that out of 66 Kanals, 2 Marlas of land in dispute an area of 28 Kanals, 3 Marlas was ancestral as it was held by Himmat Singh, father of Mehtab Singh the common ancestor. The District Judge also held that Mehtab Singh had predeceased Himmat Singh but of this there seems to be no proof. On appeal the High Court reversed the judgment of the District Judge and restored that of the trial Court and the appellant have come in appeal to this Court by special leave.

Reasoning:
4. In order to come to this conclusion the learned District Judge in an elaborate judgment has traced the history of each Khasra number and decreed only those Khasras which were held by Himmat Singh. The High Court did not accept this finding but, in our opinion, the High Court was in error in interfering with that finding. At the first regular settlement the land decreed was held by. Himmat Singh and the revenue pedigree shows that in 1885 the three branches descending from Himmat Singh, i.e., Gulab Singh who was alive, sons of Mehtab Singh and Leekar son of Fattu held khewat Nos. 34, 35 and 36 which were equal in area and each branch was paying land revenue of Rs. 13/-. The excerpt Ex. P. W. 6/1 prepared by the Kanungo further shows that the land held by the sons of Mehtab Singh, i.e., Khata No. 34 was held by them jointly and in equal shares. On these facts the finding in regard to the land decreed was held to bethis does not support the submission of counsel for the respondents. It is true that in the present case the land was held by a remote ancestor and not by the immediate common ancestor but the history of the land which has been referred to above clearly shows the ancestral nature of the land in the hand of the descendants, the parties to the present appeal. It, therefore, is ancestral. The contention of the respondents does not find support from decided cases and it is an erroneous view to take that merely because the possession by the common ancestor itself is not shown in the revenue records but that of a more remote direct ancestor is, it is non-ancestral even though the history of the land gives no indication of its acquisition by the descendants except byagain is not a correct approach to the question. Where land has been consolidated and in lieu of ancestral lands and non-ancestral land a consolidated area is given to a proprietor then such of the portion of the consolidated area which corresponds to the area of land which was ancestral will be ancestral land.The District Judge in our view rightly held that 28 Kanals and 3 Marlas were ancestral and he has rightly decreed the suit qua that portion.