(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 .......'.
(4) In view of these decisions, it is not necessary to decide the two ancillary questions which have been raised in this appeal. In the first place, it was urged by Mr. Sarin on the authority of Mamun v. Mt. Jowai, AIR 1927 Lah 329, that the last male-holder in the present case was not Ram Sarup but his father Mangal and as such Chawli and Kamla claimed as daughters of Mangal and not as sisters of Ram Sarup. It would be seen that Mahajan J. made no distinction between daughters and sisters and held that both should be preferred to fifth degree collaterals in respect of ancestral and non-ancestral property.
(5) It also becomes unnecessary to give a decision on the cross-objections which have been filed on behalf of the respondents that only 11/16th of the property is non-ancestral. There is no distinction made between ancestral and non-ancestral property so far as the contest of sisters or daughters as against fifth decree collaterals is concerned.
(6) The appellants, in my opinion, are entitled to succeed on the ration decidendi of the Full Bench decision in AIR 1959 Punj 339, and the decision of Mahajan J. in (1947) 49 Pun LR 366.
(7) I have also been invited to give my decision in favour of the appellants under the recent Hindu Succession Act, S. 14 of which gives an 'absolute estate' to female heirs who were possessed of properties at the time when this Act came into force. There is no dispute at all that the appellants have been in possession of the suit property for many years and certainly since the passing of the Hindu Succession Act in 1956. The appellants have not been holding as trespassers, and as observed by their Lordships of the Supreme Court in Kotturuswami v. Veeravva, AIR 1959 SC 577, 'the word 'possessed' in S. 14 is used in a broad sense and in the context means the state of owning or having in one's hand or power'.
I think the contention of Mr. Sarin is well founded. At all times Chawli and Kamla have held the properties in pursuance of a gift made by Smt. Bholi in respect of the property which has been found to be non-ancestral. Even though the rights of the collaterals have been preferred to those of the appellants, the possession cannot be regarded to be unlawful and in my view the appellants' possession has ripened into full ownership under S. 14 of the Hindu Succession Act.
(8) This appeal must, therefore, succeed from whatever perspective its merits are examined. I would accordingly allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiffs' suit. As, however, the law has only recently been crystallised, I would make no order as to costs of this appeal.
(9) The cross-objections in Civil Miscellaneous No. 772-C-55 are also dismissed with no order as to costs.
(10) Appeal allowed.