Gurbachan Singh And Others vs Puran Singh And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 492 of 1958

Decision Date: 6 March 1961

Coram: J.L. Kapur, M. Hidayatullah, J.C. Shah

In the matter titled Gurbachan Singh and Others versus Puran Singh and Others, the Supreme Court of India delivered its judgment on 6 March 1961. The judgment was authored by Justice J. L. Kapur, who sat on the bench together with Justices M. Hidayatullah and J. C. Shah. The parties before the Court were the petitioners identified as Gurbachan Singh and several others and the respondents identified as Puran Singh and several others. The formal citation of the decision is reported in 1961 AIR 1263 and in 1962 SCR (1) 176. The dispute related to property governed by Hindu law, specifically concerning ancestral lands that had been allotted in place of other lands during consolidation proceedings. The central factual issue involved a will executed by a person identified as “M” who bequeathed the disputed property to one of the respondents. The plaintiffs filed a suit seeking a declaration that the will was valid and that “M” possessed no authority to bequeath the land because the land formed part of the defendants’ ancestral holdings. The Court was asked to determine whether the portion of the consolidated land that corresponded to the area previously held as ancestral by “M” could still be treated as ancestral land. The Court held that when land is consolidated and a consolidated parcel is allotted to a proprietor in place of both ancestral and non‑ancestral lands, the segment of the consolidated parcel that corresponds to the area of the original ancestral land retains its character as ancestral. The Court further observed that where revenue records do not show possession by the immediate common ancestor but do record possession by a more remote direct ancestor, and where the land’s history indicates no acquisition other than by inheritance, the land should be considered ancestral. The Court relied upon the principles articulated in Attar Singh v. Thakar Singh (1908) L.R. 35 I.A. 206, and approved the reasoning of Haveldar Mihan Singh v. Piara Singh (1946) 48 P.L.R. 536 as well as Gurdev Singh v. Desaundki, AIR 1948 E.P. 22.

The appeal before the Supreme Court was Civil Appeal No. 492 of 1958, filed by special leave from the Punjab High Court’s judgment and order dated 12 September 1955, which had reversed a decree of the District Court and consequently dismissed the plaintiffs’ suit for declaration. The appellants were represented by counsel, while the respondents numbered one through four and were also represented by counsel. The judgment was pronounced on 6 March 1961 by Justice Kapur. To comprehend the controversy, the Court set out the lineage of the parties involved, tracing the family tree from Milkhi Himmat Singh through Gulab Singh, Mehtab Singh, and the deceased Fattu, down to Mangal Singh, the testator, and further to the plaintiffs Sohel Singh, Waryam Singh, and Shiv Singh, as well as to the defendants including Amar Singh and Puran Singh. On 11 August 1947, Mangal Singh executed a will bequeathing the disputed property to Amar Singh, who was identified as defendant No. 1. Following Mangal Singh’s death on 25 October 1947, the mutation of his estate was effected on 10 April 1948, recording the transfer of the property in the name of Amar Singh under mutation number 733. The plaintiffs subsequently instituted a suit demanding a declaration that the will was ineffective against them and seeking possession of certain parcels of land that had been mutated in Amar Singh’s name. They alleged that the will had been procured through undue influence, coercion, and fraud, and that Mangal Singh lacked the authority to bequeath the land because it constituted ancestral property belonging to the defendants. The trial court dismissed the suit, finding no proof of undue influence, coercion, or fraud, and concluding that the land had not been established as ancestral. The plaintiffs appealed, and the District Judge held that of the 66 kanals 2 marlas of land in dispute, an area of 28 kanals 3 marlas was ancestral, as it had been held by Himmat Singh, the father of Mehtab Singh.

Amar Singh’s name was entered in the revenue records on 10 April 1948 by way of mutation No. 733. The plaintiffs, identified as Sohel Singh, Waryam Singh and Shiv Singh, instituted a suit seeking a declaration that the will executed by the late Mangal Singh was ineffective against them and also seeking possession of certain parcels of land that had been mutated in Amar Singh’s name. The plaintiffs alleged that the will had been obtained through undue influence, coercion and fraud, and contended that Mangal Singh lacked the authority to devise the land because, according to them, the disputed land was ancestral in respect of the defendants. The defendants denied these allegations and raised the necessary issues in their defence. The trial court dismissed the suit, holding that the plaintiffs had failed to prove that the execution of the will was procured by undue influence, coercion or fraud, and that the plaintiffs had also failed to demonstrate that the land was ancestral. An appeal against this decree was preferred to the District Judge. The District Judge held that, of the total 66 kanals and 2 marlas of land in dispute, an area of 28 kanals and 3 marlas was ancestral because it had been held by Himmat Singh, the father of Mehtab Singh, who was the common ancestor. The District Judge further observed that Mehtab Singh had predeceased Himmat Singh, although no proof of this was produced. On further appeal, the High Court set aside the District Judge’s finding and restored the trial court’s decree. The appellants then obtained special leave to appeal to this Court. The sole question before this Court is whether the 28 kanals and 3 marlas of land claimed by the appellant are proved to be ancestral in respect of the plaintiffs. Of the land claimed, 20 kanals and 19 marlas described in paragraph A‑2 were shown to have been acquired by Mangal Singh by pre‑emption, and another portion consisted of land he had acquired by mortgage. Consequently, the controversy was limited to certain Khasra numbers that had fallen to the testator’s share in consolidation proceedings in place of his share in land actually held by him. The excerpt P.W. 6/1 prepared by the special Kanungo indicated that some of those Khasra numbers were traced to the possession of Himmat Singh, son of Milkhi, in 1849; other Khasra numbers were traced to the possession of Himmat Singh together with others; and the remaining numbers were traced to strangers. The District Judge held that only the land which had been possessed in 1849 by Himmat Singh could be regarded as ancestral in respect of the plaintiffs and therefore decreed the suit only with respect to that portion, i.e., 28 kanals and 3 marlas, which constitutes the land presently in dispute. To reach this conclusion, the learned District Judge, in a detailed judgment, traced the history of each Khasra number and decreed only those Khasras that had been held by Himmat Singh. The High Court did not accept this finding, but in this Court’s view the High Court erred in interfering with the District Judge’s determination. At the first regular settlement, the land in question was indeed held by Himmat Singh.

According to the revenue pedigree, in the year 1885 the three branches that descended from Himmat Singh – namely Gulab Singh, who was then alive, the sons of Mehtab Singh and Leekar, the son of Fattu – each held khewat numbers 34, 35 and 36. These three parcels were equal in area and each branch paid a land‑revenue demand of Rs 13. The excerpt labelled Ex. P. W. 6/1, which was prepared by the Kanungo, further demonstrates that the land recorded under Khata number 34 was possessed jointly by the sons of Mehtab Singh in equal shares. On the basis of these facts the Court held that the land that had been decreed was ancestral. The respondents argued that the land could not be considered ancestral unless it was shown to have been held by the common ancestor, identified as Mehtab Singh, and they pointed out that no revenue entry existed showing the land in his name. To support this contention they quoted a Privy Council decision in Attar Singh v. Thakar Singh, wherein Lord Collins stated that “It is through their father, as heir of the abovenamed Dhanna Singh, that the plaintiffs claimed, and unless the lands came to Dhanna Singh by descent from a lineal male ancestor in the male line through whom the plaintiffs also in like manner claimed, they are not deemed ancestral in Hindu law.” However, the Court found that this quotation did not support the respondents’ argument. While it is true that in the present case the land was held by a more remote ancestor rather than by the immediate common ancestor, the historical record presented earlier clearly indicated that the land had passed down through inheritance to the present parties. Consequently, the Court concluded that the land was indeed ancestral. The respondents’ position was not backed by any decided case, and it was deemed erroneous to assert that the absence of a revenue entry in the name of the immediate common ancestor automatically negated the ancestral character of the land, especially when the history showed no evidence of acquisition other than inheritance.

The respondents further contended that the land claimed had been consolidated, mixing ancestral and non‑ancestral portions, thereby making it impossible to distinguish which part was ancestral. The Court rejected this view. It held that when consolidation occurs and a proprietor receives a single, larger area that replaces the earlier separate parcels, the portion of the consolidated area that corresponds to the original ancestral land remains ancestral. This principle had been applied in the decision of Haveldar Mihan Singh v. Piara Singh, a judgment delivered by Abdul Rashid and Mehr. Accordingly, the Court affirmed that the ancestral character of the land persisted despite consolidation, and it dismissed the respondents’ argument as unfounded.

The judgment was delivered by Justice Chand Mahajan and his fellow judges, who at that time were referred to as Chand Mahajan, JJ. The Court observed that the same principle had been adopted in a later decision of the East Punjab High Court in the case of Gurdev Singh v. Dasa undhi. In that judgment the High Court stated that when the ancestral portion of the land that was given or transferred is not negligible and represents a definite proportion of the whole, there is no difficulty in apportioning the acquired land according to the areas of the two classes of land, namely ancestral and non‑ancestral. The Court then examined the findings of the District Judge and held that the District Judge had correctly identified 28 Kanals 1 and 3 Marlas as ancestral land and had properly decreed the suit with respect to that portion. Accordingly, the Court concluded that the appeal succeeded, the decree of the District Judge was to be restored, and costs were to be awarded in both this Court and the High Court. The appeal was therefore allowed, and the order was restored with costs as specified. The judgment relied on the authorities cited as (1) (1946) 48 P.I.R. 336 and (2) A.I.R. 1948 E.P. 220 25.