Shamsher Bahadur, J.:— The suit property comprising of a house and 40 bighas of agricultural land belonged to Bhag Singh, who made an alienation in favour of his daughters, Gurbakhshi and Jeet Kaur, by a deed dated 28th of June, 1949. Sobha Singh, claiming to be a fifth degree collateral of the donor, challenged this alienation on the ground that the gift being in respect of ancestral land was not binding on his reversionary rights. The suit was contested on more than one ground. The legal status of the plaintiff as a collateral was challenged and so was the ancestral nature of the property. There was also a plea in respect of limitation. The questions of limitation and the locus standi of the plaintiff to bring the suit are no longer the subject matter of controversy in this appeal, these having been decided in favour of the plaintiff. Both Courts, however, having held that the property in suit had not been proved to be ancestral, the suit has been dismissed, and the plaintiff has come in second appeal to this Court.
2. Even with regard to the ancestral nature of the property, the dispute is confined only to agricultural land, it having been conceded by the plaintiff that the notice was constructed by the donor (Bhag Singh) himself. The only ground on which the property is claimed to be ancestral is that in the settlement of the year ??? one of the khatas measuring a little over one bigha was held jointly between the ancestors of the donor and the plaintiff. There is no record of any description to show what the position was at the time of the first settlement, and it must, therefore, be assumed that the land at the time of the first settlement was not held by the respective branches of Bhag Singh donor and the plaintiff in ancestral shares. In Exhibit P.F relating to the year 1890 the family of the donor is shown to be in possession of two khasras Nos. 31 and 33 Min, while the branch represented by the plaintiff was shown to be in possession of khasras Nos. 32 and 33 Min. It has been contended by the counsel for the appellant that the equality of shares of the branches as shown in the jamabandi of the year 1–13–14 coupled with the joint khata held by the branches in the year 1890 lead to an irresistible inference that the property is ancestral. It is not possible for us to accede to this argument. For one thing, the khata which was in joint possession consists of a very small proportion of the land which is now in dispute. Moreover, there is no indication of any kind that at the time of the first settlement the ancestors of the parties held land in equal shares and this alone could have given rise to the presumption that it was held by the common ancestor Dewan Singh. The learned counsel has placed reliance on a Division Bench judgment of the Lahore High Court in Mt. Maryan Bibi v. Ghulam Muhomad . A.I.R 1924 Lah. 175., where it was held that when the property of the plaintiffs was just equal to that of the deceased and the name of the common ancestor was expressly recorded in genealogical trees prepared at different settlements and one of the khata was still joint, the presumption was that it was ancestral. The ruling of this decision was based on Jiwan Singh v. Har Kaur . 41 P.R 1914, an authority which was subsequently dissented from by a Division Bench (Campbell and Tek Chand JJ.) in Chanda Singh v. Mst. Banto . I.L.R 8 Lah. ???. The ratio decidendi of Jiwan Singh's case that “the express mention of the common ancestor in the genealogical tree furnished a presumptive proof that the land originally belonged to him” is a proposition which can no longer be subscribed after the Privy Council decision in Mt. Subhani v. Nawab . A.I.R 1911 P.C 21, Rt. Hon'ble Mr. M.R Jayakar, who delivered the Judgment of the Board, approved the decision of the Division Bench of Campbell and Tek Chand JJ. in Chanda Singh v. Mst. Banto, At page 23, it was stated that “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. It should also be proved that the descendants of that common ancestor hold the land in ancestral shares and that the land occupied at the time of the dispute, by the proprietors thereof had devolved upon them by inheritance. It is now settled law in the Punjab that the more mention of the name of a person in the pedigree table as the common ancestor is no proof of the fact that every piece of land held by his descendants (how soever low) was originally held by and descended from him in succession from generation to generation.”
3. None of the ingredients mentioned in the Privy Council decision has been proved to exist in this case. A part of the land alone was held jointly at one time long alter the first settlement. It has not been shown that the land at any time was held by the common ancestor, nor is this presumption available as the entries to show that the sons of the common ancestor held the land in equal ancestral shares have not been produced. In view of the subsequent development of the case law on the subject, the decision in Mt. Maryan Bibi v. Ghulam Muhomad, cannot be regarded as laving down an acceptable proposition of law.
4. No other point has been agitated in this appeal which must fail and is accordingly dismissed with costs.
Tek Chand, J.:—I agree.
Appeal dismissed.