1. Suit for declaratory decree challenging gifts of land as void against reversionary rights, based on the claim that the property was ancestral under Punjab customary law. (Para 2 , 3 )
Back
Next 
1948 Supreme(SC) 69
Privy Council At Lahore
Sir John Beaumont, Lord Normand, Justice Lord Du Parcq, JJ.
Imam Din -Appellant
Versus
Mt. Said Bibi (since deceased) and others -Resopndent
Privy Council Appeal No. 7 of 1947
Decided On : 13-10-1948
Advocates Appeared:
Allen, Stanley Johnson, T.L. Wilson and Co., C.J. Colombos, J. M. Pringle, R.A. Parikh
Allen, Stanley Johnson, T.L. Wilson and Co., C.J. Colombos, J. M. Pringle, R.A. Parikh
To establish land as ancestral, it is insufficient to show a common ancestor in revenue pedigrees; the claimant must prove the land devolved by inheritance in ancestral shares. Findings based on the construction of revenue records are not mere findings of fact and are subject to appeal.
Headnote:(A) Customary Law - Alienation of Ancestral Property - Alienation of ancestral property is precluded otherwise than for necessity or with the requisite consents. (Para 3)
(B) Onus of Proof and Standard for Ancestral Land - The onus of proving that lands are ancestral rests upon the claimant. To establish the ancestral character of land, it is not sufficient to show that the name of the common ancestor from whom the parties are descended was mentioned in the revenue pedigree; it must also be proved that the descendants of that common ancestor held the land in ancestral shares, and that the land occupied at the time of the dispute had devolved upon them by inheritance. (Para 11)
(C) Revenue Records and Reallotment - Reallotment or killabandi does not affect the character of the land dealt with; land taken in exchange for ancestral land would itself be ancestral. Furthermore, the failure to prove the ancestral character of a very small portion of the land does not necessarily imply that the entire holding is non-ancestral. (Para 10)
(D) Appeal - Finding of Fact - A finding as to the ancestral character of land which is based upon the perusal, construction, and piecing together of a large number of revenue records cannot be regarded as a mere finding of fact and is therefore subject to appeal. (Para 14)
Facts of the case:
A reversioner challenged the validity of gifts of land made by a female owner to her daughters and another relative, asserting that the land was ancestral and the alienations were therefore null and void under the governing customary law. The trial court and the appellate court held conflicting views on the ancestral nature of the land, with the High Court eventually dismissing the suit on the grounds that the land was not proved to be ancestral.
Findings of Court:
The court found that the evidence provided did not meet the required standard to prove the land was ancestral. Although a common ancestor was identified in the revenue pedigree, the records showed a substantial increase in the land holdings over time that could not be explained by inheritance, meaning the land did not devolve in ancestral shares.
Issues: The main issues were whether the land in suit was ancestral property and whether the finding of the lower court regarding the ancestral character of the land was a finding of fact that precluded further appeal.
Ratio Decidendi: The court ruled that the mere presence of a common ancestor in revenue records is insufficient to establish ancestral property; there must be proof of devolution by inheritance in ancestral shares. Additionally, conclusions drawn from the interpretation and construction of revenue records are not pure findings of fact but involve legal construction, making them appealable.
Result: Appeal dismissed.
Legal Category Hierarchy
-
property law
-
customary law
-
punjab customary law
- ancestral property (Para 3)
-
punjab customary law
-
customary law
-
practice and procedure
-
evidence
- revenue records
-
appeals
- findings of fact
-
evidence
Table of Contents
2. Whether the land was ancestral property and whether the District Judge's finding on this issue constituted a non-appealable finding of fact. (Para 6 )
Sir John Beaumont.-
This is an appeal from a judgment and decree of the High Court of Judicature, Lahore, dated 30th January 1936; which reversed a judgment and decree of the Court of the District Judge, Lyallpur, dated 19th June 1935, which modified a judgment and decree of the Court of the Subordinate Judge, Sheikhupura, dated 20th June 1934.
[2] In the suit, commenced in January 1933 out of which this appeal arises the present appellant, who was the plaintiff and will generally be so referred to, prayed for a declaratory decree to the effect that the alienation by gift in respect of land measuring 1744 kanals and 12 marlas entered in the khewat therein mentioned situated in the area of Khanpur Nahipur, effected by Mt Bibi the original defendant 1 in favour of her three daughters defendants 2, 3 and 4, and Ghulam Mohammad defendant 5 and the alienation of his fourth share by defendant 5 in favour of Mohammad Hussain defendant 6 were ineffective null and void as against the reversionary rights of the plaintiff after the death of Mt. Bibi.
[3] The relationship of the parties appears from the following pedigree :
The parties are Jat Viraks and are governed by the general customary law of the Punjab. It is conceded on behalf of the respondents that the customs by which the parties are governed would preclude the alienation of ancestral property otherwise than for necessity or with the requisite consents. It appears from the above pedigree, and the fact was not disputed, that the common ancestor of the parties was Ikhtayar Mohammad, and accordingly, in order to establish that the land in suit is ancestral as between the plaintiff and the defendants, it must be shown that it was inherited from Ikhtayar Mohammad. It also appears from the above pedigree that Ghulam Mohammad is a nearer reversioner to Mt. Bibi than the plaintiff.
[4] The property in suit formerly belonged to Maula Dad, and on his death it passed to his son Hussain. On the latter's death without leaving male issue it passed to his mother, Mt. Bibi.
[5] On 29th April 1927, Mt. Bibi made gifts of three-quarters of the lands in suit to her three daughters, defendants 2, 3 and 4, and of one-quarter to Ghulam Mohammad, defendant 5, The latter made a gift of his quarter of the said lands to Mohammad Hussain, defendant 6, on 29th June 1927. It is these alienations which are challenged in the suit.
[6] The real question which arises for decision in this appeal is whether the land in suit is ancestral land. It was argued by Mr. Parikh on behalf of the appellant that even if the land was non-ancestral it was not competent for Mt. Bibi as a female to alienate it, but in the events which have happened this point is no longer open to the appellant. Mt. Bibi died in the year 1935 and was survived by Ghulam Mohammad, and as against him the appellant has no rights. On the footing that the land was non-ancestral the plaintiff's suit in its inception was purely speculative, and in the light of subsequent events the speculation has failed.
[7] At the trial the Subordinate Judge held that the land was not ancestral, but that the plaintiff was entitled to a declaration that the gift by Mt. Bibi of three-quarters of the lands in favour of her three daughters was ineffectual against the reversionary rights of the plaintiff after the death of Mt. Bibi, but he dismissed the suit in respect of the quarter share given to Ghulam Mohammad. In appeal the District Judge ordered a remand for further enquiry as to the ancestral character of the land in suit. On remand the case came before a Subordinate Judge, other than the trial Judge, who beard further evidence. He was of opinion that the evidence had not proved that the lands in suit were ancestral qua the plaintiff, and he so reported to the District Judge.
[8] On the adjourned hearing of the appeal the District Judge disagreed with the view of the two Subordinate Judges, holding that the whole of the land, with the exception of some 17 kanals, was ancest
