1. In this plaintiff's second appeal against the appellate decree of the District Judge the sole point for decision is whether the plaintiff has a right to succeed to the property in dispute and therefore has a right of preemption under section 15(b) (thirdly) of the Punjab Pre-emption Act.
2. The trial Court held that the plaintiff was a collateral in the fifth degree. After going through the evidence the learned District Judge was not satisfied with this finding and held that the relationship had not been clearly established. It is true that this finding is not as clear as it might have been and therefore the learned Judge went into the question of law also.
3. The property in dispute is a house owned by a non-proprietor. It was sold to defendant No. 1 for a sum of Rs. 800/- on the 5th of January, 1946. The learned District Judge has held that to properties such as the one in dispute, a distant collateral has no right of succession under custom. Counsel for the appellant challenges this and he submits that the rule which has been laid down in Raltigan's Digest of Customary Law, Paragraph 238A, and the other rulings which have been cited apply to cases where the dispute is between a proprietor and non-proprietor and that where the dispute is between non-proprietors 'inter se' the ordinary rule of succession under Personal Law or custom will apply. Article 238-A in Rattigan's Digest of Customary Law is as follows:
'238-A. The direct male descendants and ordinarily the widow and mother of a deceased non-proprietor will succeed to his rights in the house occupied by him at the time of his death, but not remote collaterals.'
4. This is the rule laid down in regard to succession to non-proprietors. It is not limited to cases where the dispute is between non-proprietors and proprietors. It is true that ifdistant collaterals are not heirs the result would be that the property will revert to the proprietors. But in none of the cases that have been cited is it laid down in such specific language that where the dispute is between proprietors and non-proprietors, Article 238A will apply and in other cases the ordinary rule under Personal Law or custom will apply. As long ago as 1889 in a case, 'KARAM CHAND v. HAKAM SINGH', 71 P R 1889, where the question in dispute was the right of distant collaterals of non-proprietors to succeed to houses owned by non-proprietors it was held by a Division Bench that sixth or seventh degree collaterals of a deceased non-proprietary resident had no right to succeed. It was observed at p. 226;
'The plaintiffs clearly are not absolute owners, and we are unable to find it proved that custom is here different from what it usually is or that the right of succession beyond extends to very near collaterals.'
5. In 'SHER JANG v. MUNSHI RAM', 3 Lah 33, it was held that in regard to succession to a shop belonging to a non-proprietor a collateral in a fourth degree had no right to succeed. At p. 34 Martineau, J., said:
'In paragraph 238-A of Rattigan's Digest of Customary Law it is laid down that remote collateral is not entitled to succeed to a non-proprietor, and it is not disputed that this is a correct statement of the custom, the question being only whether or not a second cousin, that is, a collateral of the fourth degree, is to be regarded as a remote collateral. We are unable to agree with the learned District Judge in applying by analogy in the present case the rule under which, where the question is one of succession to proprietary rights in land, the descendants of a common great grand-father are regarded as near collaterals.
In the case of succession to a proprietor any collateral, however remote, would ba entitled to succeed in default of a nearer heir, but where the question is one of succession to a non-proprietor remote collaterals are excluded, and what has to be determined m the present case is whether the plaintiff has proved the existence of a custom by which a collateral in the fourth degree can succeed to a non-proprietor.'
6. In 'GHULAM NABI v. THAKAR SINGH', AIR 1926 Lah 239 (1), which was a case of preemption, it was held that the seventh degree collaterals were not entitled to pre-empt because they were not heirs.
7. In 'ANOKH SINGH v. MST. JAL KAUR', AIR 1937 Lah 542, it was held that a collateral in the fourth degree is not entitled to the house of a non-proprietor and the headnote is:
'...this is the rule which must be applied to a house owned in a village by a non-proprietor whether the non-proprietor is governed by Hindu Law or Muhammadan Law or by Punjab custom. That is the rule which generally speaking applies to a house owned by a village menial, except in those places where a right of sale is established.'
The clear meaning of this statement of the law by the learned Judge is that whatever be the rule of succession with regard to proprietary land, in regard to property which is of a non-proprietary nature the succession is governed.by custom which is laid down by Article 238-A of Rattigan's Digest of Customary Law.
8. After going through these rulings and Article 238A of Rattigan's Digest of Customary Law, I am satisfied that they Jay down a general rule of succession as to property of non-proprietors and that is that remote collaterals have no right of succession and there is no case which counsel have cited or which is contained in our law reports, which gives a right of succession to a collateral more distant than the third degree.
9. In the result, this appeal fails and is dismissed. The respondent will have his costs In this Court and in the Courts below.