Back
PUNJAB & HARYANA HIGH COURT
Mehar Singh and Harbans Singh JJ.
Dalip Singh
Versus
Dara Singh
Letters Patent Appeal No. 387 of 1963,
Decided On : APRIL 25, 1967
ANCESTRAL LAND - TENURE - OCCUPANCY TENANCY - PROPRIETARY RIGHTS - EXCHANGE - ACQUISITION OF PROPRIETARY RIGHTS IN REMAINING LAND - ANCESTRAL CHARACTER OF LAND - PUNJAB ACT 5 OF 1912 - PUNJAB TENANCY ACT 16 OF 1887 - Where the common ancestor held the land in the capacity of a tenant only, that is to say, as a tenant-at-will, the land would not be ancestral in the hands of his descendants. However, if the tenancy with the common ancestor was occupancy tenancy, it would be ancestral in the hands of his descendants. In the present case, the tenure of the land with the common ancestor was similar to an occupancy tenancy under the Punjab Tenancy Act 16 of 1887. The three sons of the common ancestor acquired proprietary rights in the remaining 60% of the ancestral land after giving up 40% of the land. This exchange of ancestral tenure for proprietary rights in the remaining land did not change the ancestral character of the land.
Fact of the Case:
Subedar Bishan Singh was granted 55 acres of land under the Colonization of Government Lands Act, 1912. He died before the partition of the country in 1947, and the land was inherited by his three sons, Dalip Singh, Ajit Singh, and Jhojar Singh. Ajit Singh sold various parcels of land to different vendees. Dalip Singh filed declaratory suits claiming that the land was ancestral and that the sales were not binding on his reversionary interests. The trial court and the first appellate court dismissed the suits, holding that the land was not ancestral. The High Court also dismissed the second appeals filed by Dalip Singh.
Finding of the Court:
The High Court held that the land in dispute was ancestral qua Ajit Singh and his brother Dalip Singh, having descended from their common ancestor, Subedar Bishan Singh. The Court found that the tenure of the land with Subedar Bishan Singh was similar to an occupancy tenancy under the Punjab Tenancy Act 16 of 1887. The three sons of Subedar Bishan Singh acquired proprietary rights in the remaining 60% of the ancestral land after giving up 40% of the land. This exchange of ancestral tenure for proprietary rights in the remaining land did not change the ancestral character of the land.
Issues: 1. Whether the property in dispute is ancestral qua the plaintiff? 2. Whether the sale was effected for consideration and legal necessity? 3. Whether the suit is speculative?
Ratio Decidendi: The Court relied on the following principles in reaching its decision: 1. Where the common ancestor held the land in the capacity of a tenant only, that is to say, as a tenant-at-will, the land would not be ancestral in the hands of his descendants. 2. However, if the tenancy with the common ancestor was occupancy tenancy, it would be ancestral in the hands of his descendants. 3. The tenure of the land with Subedar Bishan Singh was similar to an occupancy tenancy under the Punjab Tenancy Act 16 of 1887. 4. The three sons of Subedar Bishan Singh acquired proprietary rights in the remaining 60% of the ancestral land after giving up 40% of the land. 5. This exchange of ancestral tenure for proprietary rights in the remaining land did not change the ancestral character of the land.
Final Decision: The High Court allowed the appeals and remitted the cases back to the Court of first appeal for decision on issues 2 and 3 and disposal of the appeals according to law.
Mehar Singh, J.
1. A government grant of land of 55 acres was made to Subedar Bishan Singh under the provisions of the Colonization of Government Lands Act,, 1912 (Punjab Act, 5 of 1912). He died sometime before the partition of the country in 1947. The land was inherited by his three sons, Dalip Singh appellant, and Ajit Singh and Jhojar Singh. Ajit Singh is dead and is represented in these appeals by his widow Nichhattar Kaur respondent. The Sanad given to Subedar Bishan Singh by the Government has not been available, but the terms and conditions of the grant are given in Punjab Government. Notification No. 360-1574-15378 of December 15, 1923, published in the Punjab Gazette of December 2, 1923. One of the main conditions of the grant was that upon the expiry of five years from the date of commencement of the tenancy or at any time thereafter, during the continuance of the tenancy, subject to the details given in the statement of conditions, Subedar Bishan Singh, on payment of sums due to the Government under the provisions of those conditions, could acquire proprietary rights in the land. It appears further from those conditions that until then he was to pay certain amount as Malkana of his tenancy in addition to usual land revenue rates and cesses.
2. In Punjab Act, 5 of 1912, Section 3 defines `tenant to `mean any person holding land in a colony as a tenant of Government and includes the predecessors and successors in interest of a tenant and the expression `original tenant is defined to mean `any male, to whom a tenancy is first allotted by the Collector and include the male transferee of such a tenant and any male nominated by the Collector in accordance with the provisions of Section 21 to succeed a female, to whom a tenancy was first allotted. In Chapter II of the Act, are provisions relating to tenants. Section 10 details the issue of statements of conditions of tenancies, sub-section (1) thereof saying that `the State Government may grant land in a colony to any person on such conditions as it thinks fit. Sections 17 to 21 give the details of the rights of a tenant with regard to exchange, transfer and succession to the tenancy. These sections read -
"17. Subject to any orders that he may receive from the Commissioner, the Collector may allow any tenant to exchange the whole or any part of his tenancy for other land in the colony, and the land so taken in exchange shall, in the absence of any Special condition to the contrary recorded in writing by the Collector, be deemed to be held on the same conditions and subject to that same obligations as the surrendered land was held.
18. None of the rights or interests vested in a tenant from Government of land to which this Act, applies shall be attached or sold in execution of a decree or order of any Court or in any insolvency proceedings.
19. Except as provided in Section 17, none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act,, 1893, or this Act,, shall, without the consent in writing of the Commissioner, or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub-lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of the tenant who has acquired a right of occupancy. Any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act, ) the transferee has obtained possession, he shall be ejected under the orders of the Collector. Provided that the right of sub-letting conferred by this section shall not release tenant from a condition requiring him to reside in the estate in which his tenancy is situated.
20. Subject to the proviso to Section 14, when after the commencement of this Act,, any original tenant dies the succession to the tenancy shall devolve in the fo
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
