WANCHOO, C. J. - (1.) THIS is an appeal by Shivkaran against the judgment and decree of the Additional District Judge, Jodhpur, by which he decreed the suit brought by Mst, Sarswati for a declaration that she was entitled to the entire movable and immovable property left by her deceased father, Hariram.
(2.) THE case put forward by the plaintiff was that her father died in Jeth Svt. 1992 leaving movable and immovable properties, list of which was attached to the plaint. Immovable property included certain houses and certain agriculture lands and wells. THE plaintiff claimed that she was heir to her father being the daughter, and based her claim on the principal of Hindu law, and the custom prevalent in the community of Shrimalis. Thikana Ghanerao took possession of the agricultural lands and wells on the ground that Hariram had died heirless. THEreupon the plaintiff as well as the defendants claimed to be the heirs of the deceased Hariram before the Thikana. THEy were directed to get their title adjudicated in the civil court, and therefore this suit was filed by the plaintiff making other objectors defendants. The suit was resisted by the defendants on the main ground that they were the nearest heirs as collaterals of Hariram, and the main issue, which was framed by the trial court, was as follows : - "is the plaintiff the nearest legal heir to the deceased Hariram and so entitled to inherit all his property according to the principles of Hindu Law and custom of the Shrimali community?" Both parties led evidence on the question of custom, and the District Judge came to the conclusion that the evidence in favour of the daughter inheriting the property of the father with reference to collaterals was overwhelming except with regards to jagir and such other grants to which Morisala Rules would apply. Though the District Judge says in his judgment that it was not clear which of the agricultural land was Muafi grant, he somehow came to the conclusion that no declaration could be granted to the plaintiff so far as agricultural lands and wells were concerned. But having come to this conclusion, in the final part of the judgment, he granted a declaration in favour of the plaintiff with respect to the entire property left by her father including agricultural lands and wells. This appeal had come up once before for hearing, and two issues were framed by this Court and remitted to the trial court for decision under O. XLI, R. 25. These two issues are as follows: - " (5) Are the agricultural lands and wells, mentioned in Schedule A, "jagirs" and "muafi" grants from the Thikana Ghanerao or from the Darbar, to which the Morisala Rules of inheritance are applicable ? (6) In case No. 5 is found in favour of the defendants, are the defendants, the collaterals of Hariram, and are they connected to him through the common ancestor to whom the lands and wells mentioned in Schedule A were granted as "jagirs" and "muafis". The Civil Judge, who had jurisdiction to try this suit, has given the finding that the defendants had failed to prove that the lands were "jagirs" or "muafi" grants from Thikana Ghanerao or from the Darbar. He has given no finding on issue No. 6, as his finding on issue No. 5 was against the defendants. The appeal has now come up before us for final disposal. There are two points which arise for consideration before us. The first is whether the daughter is entitled to succeed to the property of the father according to the custom prevalent in the Shirimali community of Mar-war when there is no male issue. The second is whether the agricultural lands and wells in dispute are jagirs or muafi grants to which Morisala Rules apply, and as such the daughter cannot inherit them ? So far as the first question is concerned, the plaintiff examined 33 witnesses who swore that the custom among the Shrimalis in Marwar was that where there was no male issue, the daughter succeeded to all the property movable and immovable belonging to the father in preference to the collaterals. These witnesses gave numerous examples where this custom had been followed. Over and above this oral evidence reliance was placed upon two pieces of documentary evidence. One is the judgment between the daughter and the collaterals in Shankerlal vs. Mst. Sagar and two others (Suit No. 1 of 1917-18) of Civil Court No. 2, Shri Darbar Raj. Marwar, Jodhpur, in this case a dispute arose between the collaterals and the daughter about inheritance of the property of Chhagniram deceased father, and the suit was brought by collaterals. The issues were not happily framed, but the court came to the conclusion that the daughter was entitled to the property, and that the plaintiff, who was the collateral, could not inherit it in the presence of the daughter and the suit was dismissed. The next document in Ex. P. I. It appears that in 1915 the Mah-kama Khas of the former State of Marwar made a reference to the Shrimali community about rules of inheritance prevalent amongst them with particular reference to the right of the State to take the property, of those who died without heirs, by escheat. The reply of the community was, of course, that there could he no escheat of the property of a Brahmin; but they also stated that the order of succession to a Shrimali, who died without male issue, was as follows: - (1) widow, (2) daughter, (3) daughters's son, (4) mother, (5) father, (6) brother, (7) brother's son, (8) Sapindas, (9) Samanodaks, etc. This clearly shows that the daughter had preferential right of succession as compared to collaterals. The defendants produced a number of witnesses; but even many of these had to admit that the daughter was entitled to succession in preference to Collaterals. We agree, therefore, with the District Judge that among the Shrimali community in Marwar, a daughter is entitled to succeed to her father in the absence of male issues in preference to collaterals. So far as jagir and muafi grants are concerned, to which Morisala Rules apply, they are governed by special rules relating to them. Barring, therefore, this kind of property to which these special rules apply, the daughter among the Shrimali community in Marwar is clearly entitled to succeed to her father in the absence of a male issue in preference to collaterals, and we hold accordingly. This brings us to the next issue namely whether the plaintiff who is the daughter in this case, is entitled to succeed to the agricultural lands and wells also. These lands and wells were the property of her father, and according to the custom which we have held proved she would be entitled to succeed to them unless it can be shown that they are of that kind to which Morisala Rules apply. When the case had come before this Court on previous occasion, a specific issue was framed on this point, and sent to the trial court for decision. The trial court held that there was no proof to show that these agricultural lands and wells were jagirs or muafi granted by the Thikana Ghanerao or by the Darbar. This finding of the court below is, in our opinion, correct, and learned counsel has been unable to satisfy us that these agricultural lands and wells are jagir or muafi grants to which Morisala Rules apply. Under these circumstances, the daughter is entitled to succeed to them also in preference to the collaterals. We, therefore, dismiss the appeal with costs to Mst. Sarswati. . ;