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