D.K. Mahajan, J. - (1.) THIS second appeal is directed against the concurrent decision of the Courts below, dismissing the Plaintiffs suit.
(2.) PLAINTIFF , Shrimati Parbati, is the daughter of Bharat Singh who had died during the lifetime of his father Molar. On the death of Bharat Singh, his brother Surat Singh succeeded to him, and, on Surat Singh's death, his mother Shrimati Dhundhan, widow of Molar, succeeded as his mother. Shrimati Dhundhan died on the 1st of February, 1955. Defendants, who are fourth degree collaterals of Molar, succeeded in getting the mutation entered in their names after the death of Shrimati Dhundhan. This led to the present suit by Shrimati Parbati, daughter of Bharat Singh. She claims that she is entitled to succeed to the property in preference to the collaterals of her grandfather. Both the Courts below, relying upon the Riwaj -i -am of Rohtak District, have negatived her claim. Hence the present second appeal by the Plaintiff. Mr. Chiranjiva Lal Aggarwal, learned Counsel for the Appellant, has raised two contentions. The first contention is that the division of property, after the death of Daulat, the common ancestor, was on the basis of chundawand. Half of the property came to the descendants of Daulat from one wife and the other half went to his descendants from the other wife. The property held by Molar belongs to the branch which got half of the property by rule of chundawand, whereas the Defendants belong to the other branch which got the other half of the property. It may be mentioned that some of the Defendants are in the same branch as Molar, but they are cognates, and, therefore, their claim cannot be considered in competition with the granddaughter of Molar. In fact we are really left with the Defendants who are the descendants of Chanan Singh, Prem Sukh and Sham Sukh, sons of Daulat. It is vis -a -vis them that the claim of Shrimati Parbati has to be considered. It is maintained by the learned Counsel that in view of the Privy Council decision in Nabi Baksh and Ors. v. Ahmad Khan and others A.I.R. 1924 P.C. 117 and of this Court in Jawala and Ors. v. Sadhu Singh and Ors. A.I.R. 1950 E.P. 15, the whole -blood will exclude the half -blood. Their Lordships of the Privy Council settled finally that where the succession is on the basis of chundawand rule, unless the heirs in one group are extinct, the heirs of the other group will not succeed to the properties of the former group.
(3.) THE second contention of the learned Counsel is that Shrimati Parbati, being the granddaughter, is entitled to succeed to her grandfather's property in preference to the fourth degree collaterals, the property being non -ancestral.;