- (1.) The dispute in the present appeal relates to land and three immovable properties which were held by Ram Sarup till his death in 1944. On 2nd of November, 1944, the Patwari made a report that Ram Sarup had died issueless without leaving any widow and that his mother Mst. Bholi was in possession of the property as an heir. On this report, a mutation was sanctioned in favour of Mst. Bholi, widow of Mangal, and mother of Ram Sarup. Bholi made a gift of this property on 26th of December, 1952 in favour of her daughters Chawli and Kamla, who are appellants in this appeal. For reasons which have not been explained, three-fourths of the property was given to Chawli, Kamla receiving only one-fourth. Apparently, Kamla was quite content with the lesser share of the property which came to her by way of gift.
(2.) Bholi died sometime in October 1953 and the present suit was instituted by eight plaintiff's, Hansa and others, who claimed to be fifth degree collateral's of Ram Sarup. Though the matter was put in issue, it is no longer disputed by the counsel for the appellants that the plaintiff's are fifth degree collaterals of Ram Sarup. The suit was resisted on various grounds. The ancestral nature of the property was denied and the plaintiff's right to succeed as collaterals was traversed. It was further pleaded that the gift was by way of a acceleration of succession. The trial Judge held 5/16th of the agricultural land as ancestral and the remaining 11/16th as non-ancestral. The three immovable properties were found to be non-ancestral. On the main question of the right of the plaintiff's to succeed, the trial Judge found that they excluded the defendants both in respect of ancestral and non-ancestral property. On this finding, the suit was decreed. The learned District Judge in appeal upheld the decision of the trial Judge but held that the entire suit property was non-ancestral.
(3.) Both Chawli and Kamla have come in second appeal to this Court. It has been argued on their behalf by Mr. Sarin that the controversy with regard to the sisters' succession as against the collaterals has not been set at rest by the latest Full Bench decision of this Court in Smt. Sukhi v. Baryam Singh, AIR 1959 Punj 339. The Full Bench decision also related to the parties in Ambala District and it was held that paragraph 24 of Rattigan's Digest to the effect that "sisters are usually excluded as well as their issue" is too broadly worded and does not lay down any general and universal recognised rule of law. Inter alia, it was held that. "if under custom as prevailing in Ambala, sister is an heir with respect to ancestral property, it is legitimate to hold that she would also be an heir with respect to acquired property; anomalies and arbitrariness can and should be excluded by Courts when deciding the existence of custom..........". The conclusion of the Full Bench was that a sister was entitled to succeed in preference to collaterals of sixth degree. The Full Bench cited with approval the decision of Mahajan J. in jagat Singh v. Puran Singh, (1947) 49 Pun LR 366. In Jagat Singh's case, 49 Pun LR 366, Mahajan J. stated the law as under: "It is no doubt true in paragraph 24 of Rattigan's Digest it has been stated that sisters and their sons are in general not heirs but that has been aid in very wide terms. It may be applicable to cases of ancestral property, but it is difficult to say that there is any special rule of general custom when a contest arises between a sister and collaterals of the third or fifth degree and the property is self- acquired. It is true that so far as ancestral property is concerned collaterals up to the fifth degree have preference both over the daughter and sister .......".;