When ancestral and non-ancestral property are mixed, it is considered non-ancestral unless it can be separated.

M.M. Kumar, J. - This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below. It has been found that the plaintiff- appellants have failed to prove that the suit property is ancestral in nature and the gift deed dated 8.7.1952 Ex. D.1/1 executed by Chet Ram in favour of defendant-respondent Lachhmi did not suffer from any legal lacuna sufficient for setting it aside. It has also been concurrently found that Smt. Lachhmi defendant-respondent had contracted Kareva marriage with the donor Chet Ram, deceased and consequential she has been held to be wife of Chet Ram. On the basis of the afore-mentioned findings, the plaintiff-appellants who are collateral of Chet Ram have been held to be not entitled to any share in these self-acquired property of Chet Ram.

2. Brief facts of the case are emerges from the judgments of both the Courts below are that plaintiff-appellants filed Civil suit No. 21 of 1997 on 15.10.1971 seeking possession of the suit land alleging that Chet Ram deceased son of Hansa was the owner of the agricultural land and the plaintiff- respondents being collaterals of Chet Ram deceased were entitled to succeed to his estate after his death as the suit land was ancestral in the hands of Chet Ram. It was further alleged taht gift deed dated 8.7.1952 gifting half share of the property of Chet Ram in favour of defendant-respondent was impermissible being without any consideration and legal necessity. It was further alleged that it was a sham transaction without previous consent and concurrence of the plaintiff-appellants who are the reversionaries of Chet Ram. According to Riwaje-am of Karnal District, no proprietor could alienate or gift his ancestral property during his life time to the detriment of his collateral and reversionary. The mutation sanctioned in favour of defendant- respondent with regard to the half share of the property was also challenged being illegal. It was also alleged that defendant-respondent was not the widow of Chet Ram.

3. The defendant-respondent took the stand that earlier also the suit was filed by sons of Mangal namely Isma and Birbal for possession where the gift deed was challenged and it was alleged that defendant-respondent was widow of deceased Chet Ram. Invoking the doctrine of res judicata, the defendant- respondent has pointed out that the instant suit was not maintainable as the earlier suit has been dismissed. The locus-standi of the plaintiff-appellants to file the suit was also challenged. However, it was admitted that Chet Ram was owner of the suit property alleging that the same is self acquired property and not the ancestral property. Therefore, Chet Ram was entitled to execute the gift deed. In order to appreciate the controversy the pedigree table as given by the plaintiff-appellants may be noticed as under :

4. It is appropriate to mention that during the pendency of the suit the plaintiff Mangal had died and is now represented by his legal representatives. On the basis of the copies of the pedigree table filed by the plaintiff- appellants Ex. P5 and P6 it was found that the plaintiff-appellants are the nearest collaterals of Chet Ram deceased whose estate is under dispute.

5. The core issue required to be determined by this Court is whether the appellant was the owner of the property in dispute. From the excerpt of Jamabandi in respect of the year 1854 to 1941-42 Ex. PW 6/A, the ld. Addl. District Judge has found that in the year 1925-26 area in the name of Chet Ram is shown to be 58 bighas and 18 biswas whereas from the estate he would not have inherited little more than 22 biswas. There was no explanation as to how Chet Ram became the owner of 58 bighas 18 biswas. The afore-mentioned finding has been recorded by the ld. Addl. District Judge in paras 12 and 13 of his judgment recording the conclusion that the deceased Chet Ram must have acquired much more land th