Judgment

BOSE, J.: The plaintiffs appeal. They claim to be the presumptive reversioners to one Harnam Singh who owned the property in dispute. On 2-11-1944, after Harnam Singh s death, his daughter Mst. Biro, the second defendant, gifted the plaint properties to her sons who have been grouped together as the first defendant. The plaintiffs contend that the property is ancestral and that the daughter got only a life estate, so they sue for a declaration that the gift will not affect their reversionary rights.

2. The defendants rely on custom. They state that, according to the customary law which governs the parties, collaterals beyond the fifth degree are not heirs in the presence of a daughter and her line. The plaintiffs, they say, are collaterals of the seventh degree, therefore they cannot displace the daughter. They also state that the property was not ancestral and so the plaintiffs cannot challenge the daughter s alienation. The third line of defence related to a portion of the property which is not in dispute before us.

3. The property in suits consisted of three items:

(1) 253 bighas of Khas land;

(2) a half share in 3 bighas 19 biswas; and

(3) a share in certain shamlat property.

The defendants say that Harnam Singh gifted 123 bighas of the Khas land to the second defendant: that the gift was absolute and so the plaintiffs cannot get the portion of the property in any event.

4. The trial Judge held, on the admission of the plaintiff s counsel, that the land in dispute was non-ancestral and that the daughter s sons would succeed after her to the exclusion of the plaintiffs therefore the gift by her to her sons amounted to an acceleration of the estate. The learned Judge dismissed the plaintiffs suit.

5. On appeal to the lower appellate Court, the finding that the property was non-ancestral was upheld as the plaintiffs learned counsel in that Court did not contest the finding of the first Court on this point. As regards the acceleration, the learned Judge thought it necessary to examine a point which the plaintiffs had raised in the trial Court but which was ignored there, namely that a house was not included in the gift. Therefore it was argued that as the whole of the estate was not passed on to the next heir there was no acceleration. The learned Judge took evidence on this point and held that the house was not included and so found against the defendants. Accordingly he decreed the plaintiffs claim for this part of the estate.

6. In the High Court the learned Judges upheld the concurrent finding about the non-ancestral nature of the property. Before them also the point was conceded by the plaintiffs counsel. They also held that the house was not included in the gift but held that it was such a small part of the estate that the daughter s retention of it could not indicate an intention of her part not to efface herself from the estate. They also held in the plaintiffs favour that they were collaterals in the fifth degree and not the seventh but held that as the property was non-ancestral the daughter s sons were the nearest heirs, so the gift accelerated the estate and vested it in the donees despite the exclusion of the house. Accordingly, they reversed the decree of the lower appellate Court and restored that of the learned trial Judge.

7. Before, us, the plaintiffs learned counsel tried to reopen the concurrent finding of the three Courts about the non-ancestral nature of the property but we did not allow him to do so. The question is a mixed question of law and fact and the admission involved both. We were not shown how the facts admitted could be disentangled from the law so that we could determine whether the conclusion of law drawn from the admitted facts was wrong. The learned trial Judge said that the admission was made because of a previous decision in a former suit between the same parties or their predecessors. Harnam Singh had mortgaged a part of his estate and placed the mortgagees in possession. When he di