B.R. Tuli, J. - (1.) THE Plaintiffs filed the suit out of which this appeal has arisen against Smt. Ram Piari widow of Sarupa and Ors. for possession of the land measuring 70 Kanals 10 Marlas, situate in village Allika, tehsil Palwal, district Gurgaon. This land was owned and possessed by Smt Nanhi widow of Paltu and Smt. Ram Piari, defendant 1. Smt. Nahni died in September, 1953 and the plaintiffs brought the suit on the ground that they were entitled to inherit 3/4th share of the land while Budh Ram and Hirde, defendants 2 and 3, were entitled to inherit the remaining 1/4th share, according to Hindu Law, but the mutation of the entire land had been effected in favour of Smt. Ram Piari. Defendant 1. Budh Ram and Hirde. defendants 2 and 3, were alleged to be colluding with Smt. Ram Piari defendant 1, in order to deprive the plaintiffs of their rights in the land. Consolidation of holdings took place in the village as a result of which the 1 and described in para 5 of the plaint had been given to Smt. Ram Piari in lieu of the land which was owned by her and Smt. Nanhi deceased. The plaintiffs prayed for possession of 3/4th of the land as detailed in para 6 of the plaint.
(2.) DEFENDANTS 2 and 3 were proceeded against ex parte and defendant 1 alone contested the suit. She pleaded that she was a preferential heir to Salt. Nanhi's estate as against the plaintiffs and that the suit was barred by time. It is admitted on bath sides that the plaintiffs. are 10th degree collaterals of Paltu husband of Smt Nanhi while Smt. Ram Piaris the widow of Saruba, 6th degree collateral of Paltu. On the pleadings of the parties, the learned trial Court framed the following issues: 1. Are the plaintiffs collaterals of Paltu, husband of Smt. Nanhi deceased and what degree. 2. Is the suit time barred ? If issue No. 1 is proved, is the defendant an heir of the deceased at against plaintiff. ?
(3.) WAS Nanhi an absolute owner of the property and what is its effect ? Is the suit bad for not giving correct details of the property claimed ? Later on, the following issue was added on January 8, 1958 after the written statement had been amended: Are the parties governed by custom in matters of succession and what is that custom ? The learned trial Court under issue No. 1 found that the plaintiffs were the both degree collaterals of Paltu, husband of Smt Nanhi. Issue No. 2 was found against the defendants and the suit was held to be within time. Under issue No. 3 it was held that the plaintiff; had a preferential right of succession as against defendant 1, according to Hindu Law Issue No. 4 was decided against defendant 1 as it was held that Smt Nanhi was net an absolute owner of the property Issue No. 5 was derided against the contesting defendant as no arguments were addressed Under issue No. 6, the learned trial Court held that the law of succession applicable to the parties was agricultural custom and at any rate the right of representation existed in the family of the parties, He therefore, held that Smt. Ram Piari had a better right of succession to the property in dispute as against the plaintiffs and defendants 2 and 3. As a result of his decision on issue No. 6, the suit of Die plaintiffs was dismissed on June 30, 1958 and the parties were left to bear their own costs. 3. Against that decree, the plaintiffs filed an appeal in the Court of the District Judge, Rohtak, which was dismissed on June 8, 1959. Feeling aggrieved from that decree, the plaintiffs have filed the present appeal in this Court. 4. The only question which was argued before the learned District Judge was whether the parties were governed by custom according to which a widow of a nearer collateral succeeds in preference to remote collaterals. The provisions of Hindu Law were relied upon and it was submitted that according to Mitakshara law, the only females entitles to succeed as heirs to a male are, 1 (widow 2) daughter, (3 mother 4) father's mother, and father's father's mother. To this list the son's daughter, daughter's daughter and sister were added by the Hindu Law of Inheritance (Amendment) Act, 1929. It was held in Soshil Chand and Ors. v. Mangat Ram, (1963) 55 P. L, R. 428, that distant collaterals have a preferential right to succeed under Hindu Law to that of a widow of a nearer collateral and that a widow can succeed to her husband's estate, which is actually vested in him It may be either of title or of possession at the time of his death. She takes at once on his death or not at all. No fresh right accrues to her as a widow on the subsequent death of some one to whom her husband would have succeeded if he had Jived. There is no dispute about this rule but what has been held in various judgments is that the rule that the right of representation does not exist in matters of succession is not followed among the high caste Hindu tribes of the districts of Rohtak, Karnal and Gurgaon and the right of representation in collateral succession prevails in these districts It was so held in Kanhya Lal v. Kishna 39 P. Rule 1884, and Kahni Ram v. Molar, AIR 1037 Lah. 710 The case of Kanhya Lal related to Aggarwal Baniyas of a village near Rewan district Gurgaon, while the case of Kahni Ram was from Rohtak district It had been held by Lal Chand, J. in Mehtab -ud Din and Ors. v. Abdullah, 140 P.L.R. 1908, after a review of the authorities that - the customary rule of representation has been found by judicial inquiry as well as experience to prevail generally throughout the province amount agriculturists as well as non -agriculturists, whenever the matter was disputed and not a single case to the contrary is traceable or was quoted. The presumption therefore might be that a custom so generally prevalent was also followed by the parties to the present case X X X. In Diwan Chand and Ors. v. Beli Ram : A.I R. 1940 Lah. 431, it was held that among Khatris of Rawalpindi, as among Hindu generally in the Punjab, strict Hindu Law has been modified by custom according to which the right of representation is recognised in collateral succession. In Mangta v. Mangal, A.I.R. 1942 Lah 24 it was held by Tek Chand, J., that the strict rule of the Mitakshara is not followed among high caste Hindu tribes of the districts of Rohtak, Karnal and Gurgaon. where a nephew succeeds along with the uncle to the property of the deceased collateral and the judgments referred to above were relied upon. In Mt Sardaran Bi and Ors. v. Mt. Mirzan : A. I. R. 1935 Lah. 954, it was held that it is beyond dispute that in the central and in the eastern districts of the province the right of collateral succession of a widow is well recognized and that the onus to prove that a widow does not succeed collaterally is on the persons who contest her right.;