B.S. Yadav, J. - Atma Ram respondent No. 2 was the owner of the suit land measuring 13 Kanals 19 marlas situated in village Shamu District Ambala. He sold that land to the present appellant Chhajju Ram for Rs. 2500/- by means of a registered sale-deed dated 20th August, 1963. Present respondent No. 1 Kapuria, who is alienor's father's brother's son, filed the usual suit under the custom challenging the sale. He alleged that he and defendant No. 1, (i.e Atma Ram) were Kaharas by cast and were governed by general agriculture custom in the matters of alienation under which a male proprietor was not competent to alienate and sell land without consideration and legal necessity. According to him, the land was ancestral qua him and the alienor and the impugned sale was without consideration and legal necessity. 2. Chhajju vendee contested the suit. He pleaded that the sale was for consideration and legal necessity. He denied all other allegations of the plaint. 3. Upon the allegations of the parties the learned trial Court framed the following issues : 1. Whether the plaintiff is the third degree collateral of the vendor, Atma Ram ? 2. Whether the land in dispute is ancestral of the plaintiff qua defendant No. 1 ? 3. Whether the plaintiff and defendant No. 1 are governed by agricultural custom whereby defendant No. 1 was not competent to sell the land in dispute to defendant No. 2 without consideration and legal necessity ? 4. Whether the land in dispute was sold for consideration and legal necessity ? 5. Relief. 4. Under issue No. 1 it was held that the plaintiff was 3rd degree collateral of Atma Ram alienor. Under issue No. 2 it was held that the land in dispute was ancestral qua the plaintiff and the alienor. Under issue No. 3 it was held that the plaintiff and the alienor were governed by custom according to which ancestral property could not be sold without legal necessity. The learned trial Court did not give any finding about the consideration paid to the alienor in respect of the sale but held that legal necessity only to the extent of Rs. 1120/- had been proved. As a result of the above findings, he decreed the suit of the plaintiff on payment of Rs. 1120/-. It may be mentioned here that the decree is not in proper form. The learned trial Court ought to have declared the sale as not binding on the plaintiff except to the extent of Rs. 1120/-. 5. Feeling aggrieved the vendee filed an appeal which was heard by learned Additional District Judge, Ambala. He confirmed the findings of the learned trial Court on the above issues and dismissed the appeal. The vendee has now come to this Court in appeal. 6. The learned counsel for the appellant did not attack before me the findings given by the learned trial Court under issues Nos. 1, 3 and 4. He however, argued that it has not been proved on the record that the land sold by Atma Ram was ancestral qua him and the plaintiff. In other words, he challenged the findings of the learned Courts below given under issue No. 2. I am of the opinion that the argument of the learned counsel for the appellant has force. Consolidation of holdings has taken place in the village. The plaintiff produced Khatauni Istemal Exhibit P-7, which shows that the land of Atam Ram, Vendor and others was comprised in Khewat No. 74 and it was put in hotchpotch during consolidation proceeding. The plaintiff got prepared except Exhibit P-2. Khasra numbers given in Exhibit P-7. When traced back with the help of the excerpt and the index attached to it, it is noticed that in 1910-11, that land was recorded in the ownership of Ghasitu who was the common ancestor of Atma Ram vendor and the plaintiff. However, the Jamabandi for the year 1914-15, shows that Moti, Hira and Lekhu are recorded as owners in equal share to the extent of 1/2 shares in that land while the remaining half share in that land is recorded in the ownership of Gokal Chand and Hira, Sons of Moti Narain caste Zargar. Atma Ram vendor is the son of Moti while Kapuria plaintiff is the son of Hira. As the three sons of Ghasitu are recorded as owners in equal shares, the learned trial Court has drawn an inference to the effect that they must have inherited the property from Ghasitu. The plaintiff did not produce on the file the mutation of inheritance which might have been sanctioned after the death of Ghasitu. To prove that certain property is ancestral, it has to be proved beyond doubt that the property was inherited from common ancestor. The presumption that when different branches are found to be in possession of immovable property in ancestral shares then they must have inherited from common ancestor, can be raised only if they are so found at the time of first settlement because prior to that there were no revenue records. However, in the present case the revenue records are existing since 1852 when father of Ghasitu is recorded as the owner of the land. Thus as the mutation which might have been sanctioned after the death of Ghasitu, has not been produced on the record, it cannot be held that Moti, Hira, and Lekhu inherited the property by succession from Ghasitu. Another thing to be noted is that in addition to Moti, Hira and Lekhu who are Kahar by caste, Gokal Chand and Hira sons of Narain caste Zargar have also been recorded as owners to the extent of half share. It is not clear on the file how Gokal Chand and Hira got the property of Ghasitu. 7. The learned lower appellate Curt has relied upon the statement of the plaintiff who has stated that the property in dispute had descended from Ghasitu. I am doubtful if on the basis of that statement it can be held that the sons of Ghasitu inherited the property by succession. It is not under stood why the mutation of succession was not produced on the file. For the foregoing reasons it is held that in the present case it is difficult to hold that the suit property is ancestral qua the plaintiff. I upset the finding of the learned Courts below given under issue No. 2. 8. The learned counsel for the appellant also argued that the alienation in question was effected by means of sale-deed dated 20th August, 1963, while the present suit was filed on 24th December, 1968, and therefore, in view of Article 58 of the Indian Limitation Act, 1963, prescribing a period of 2 years for a declaratory, suit, the suit was barred by time. That Act is not applicable because in the present case the sale was effected before the coming into force of the said Act. Moreover, the present case is governed by Punjab Limitation (Custom) Act, 1920. According to Article 1 of that Act a suit for declaration that an alienation of ancestral immovable property will not, according to custom, be binding on the plaintiff after the death of the alienor can be filed within 6 years from the date of the sale-deed in case the sale is by means of such deed. That article further provided that from which date the period of 6 years will be commuted when the alienation is not by means of a registered deed but it is unnecessary to mention those provisions here. Therefore, the suit will have to be held within time. 9. The learned counsel for the appellant further argued that the suit is speculative because in the evidence it has come on record that Atma Ram, vendor has two daughters one of those daughters has issues and in view of the provisions of Hindu Succession Act, the plaintiff who is 3rd degree collateral, has no right of inheritance to the estate of Atma Ram in the presence of those daughters and the issues of one of those daughters. I am of the opinion that in the present case the suit cannot be said to be speculative because the females have no right to contest an alienation of ancestral property effected by a male owner. In view of the Punjab Customs (Power to Contest) Act, 1920, only male lineal descendants from the great grandfather of the person making the alienation or appointment, can challenge the alienation of ancestral property or appointment of an heir. Succession to the estate of Atma Ram has not yet opened. Therefore, the plaintiff is entitled to have his reversionary right safeguarded. In Maghar Singh and other v. Gujjar Singh and others, 1964 PLR 865, during the pendency of a declaratory suit, challenging the alienation by a widow, succession has opened on her death and some person other than the plaintiff became entitled to succeed the property. It was remarked :-

"The only new fact which is brought to our notice is the death of the donor during the pendency of this appeal. Of this subsequent event this Court must take notice because a declaratory decree can only be granted before the succession opens; after the succession has opened it is ordinarily a suit for possession which has to be instituted by the heirs who actually succeed to the estate of the deceased, in that succession, as has often been said, is never in abeyance. This Court must, therefore take notice of the subsequent and not ignore it as has been pressed on behalf of the respondents. It is not claimed by the respondents that they or any one of them can claim the right to succeed to the estate of the deceased whether this is be the estate of the last male holder or of the widow. This appeal being a re-hearing according to the law of procedure, we are entitled, and indeed enjoined, to consider the question whether or not in the circumstances as they exist at the present moment. A declaratory decree which is after all a discretionary relief, should be granted in favour of the plaintiffs (reversioners) none of whom claim to have any right to succeed on the widow's death. As soon as the succession opens, the estate vests in the true heir and the sole purpose of granting any declaration simpliciter would obviously disappear"

. Therefore, it cannot be said that the present suit is speculative. 10. In view of the findings given by me under issue No. 2, I accept the present appeal and set aside the decrees passed by the learned Courts below and dismiss the suit of the plaintiff. In the circumstances of the case I leave the parties to bear their own costs. Appeal accepted.