P (PLP)

62 I. C. 855 ref. Ghulam Mohy‑ud‑Din Khan, for Appellant. Sheikh Abdul Aziz, for Respondents. MUHAMMAD MUNIR, C. J.‑This appeal under clause 10 of the Letters Patent is brought against the appellate judgment of a learned Single judge in a suit instituted by Muhammad Ashraf Beg and Muhammad Daud Beg, respondents for a declaration that a sale of property effected by their father Mirza Mahfuz Beg in favour of Sikandar Din appellant will not affect their right: as reversioners of the vendor. The land in suit, together with some other, was held by Shah Alam Beg, father of Mahfuz Beg, in 'the second Settle ment of 1887. In the third Settlement the land was shown as being owned half and half by Shah Alam. Beg and his son Mahfuz Beg. The latter sold the land in suit to Sikandar Din appellant for Rs,

200. The respondents, who are the sons of Mahfuz Beg, sued for a declaration that after their father's death their rights in the property would not be affected by the sale which was without necessity. The appellant contended that the property in suit was not ancestral and that, therefore, the plaintiffs‑respondents had no cause of action. The learned judge has held that since the property was gifted by Shah Alam Beg to his son Mahfuz Beg sometime between the second and the third Settlements, it must be deemed to be ancestral. The sole question in this appeal is whether that finding is correct. It is true that where ancestral property has been gifted by a person to the presumptive reversioner by reason of the latter's connection with the common ancestor, the gift will be ignored and will be treated merely as acceleration of succession, not affecting the ancestral character of the property. The basic authority for this view is Imam Din v. Ram Rattan, 62 I. C. 855, where Abdur Rauf and Martineau, JJ. held that property which is ancestral does not cease to be so merely because the present owner acquired it not by descent but by gift from a collateral where the reason of the gift was the donee's connection with the common ancestor of himself and the donor. But before that rule is applied, the party invoking it must show: (1) that the property had come to the donor from the common ancestor of himself and the donee ; (2) that the donor was not competent to transfer it except for legal necessity and the donee could challenge its alienation by the donor if it were without necessity ; and (3) that the gift was made in recognition of the donee's right ,to succeed on the donor's death by reason of his being the descendant of the common ancestor of himself and the donor so that the gift merely accelerated the donee's succession. If anyone of these elements is wanting, the gift would make the property‑self‑acquired of the donee. In the present case, there is nothing to show that the property was ever held by the father of Shah Alam Beg. It must, therefore, be held to be Shah Alam Beg's acquired property. That being so, he had full authority to give it to anyone, and when he gave it to his son, it became the latter's self‑acquired property. It cannot be said in this case that Mahfuz Beg got the pro perty merely by reason of his being a descendant of the common ancestor of himself and Shah Alam Beg. None of the cases on which reliance has been placed for the respondents is' in point because they are all cases where the property gifted was the ancestral property of the donee and the donor. The donee in the present case was the vendor Mahfuz Beg and property qua him could have been held to be ancestral only if it had been proved to have once been owned by his grand father, i.e., the father of the donor Shah Alam Beg. Property which could not be traced to Shah Alam Beg's father could not possibly be held to be ancestral qua Mahfuz Beg. We are, therefore, of the view that the land in suit was not proved to be ancestral and should have been field to be the self‑acquired property of Mahfuz Beg who got it by gift from his father who had acquired it himself, For these reasons we accept this appeal, reverse the decree of the learned Single judge and dismiss the suit with costs throughout. A. H. Appeal accepted.