Judgement

S. R DAS J.: This is an appeal by the plaintiff in a suit for a declaration of his title as collateral within four degrees of Gurdial, who was Sarswat Brahmin, resident of Pathankot in the district of Gurudaspur and the last male holder of the properties in suit.

2. Gurdial died many years ago, leaving certain lands in villages Bhadroya, Kingarian and Pathankot, Tehsil Pathonkot in the district of Gurudaspur, and leaving him surviving his widow Mt. Melo and a daughter Mt. Maya Devi, the respondent before us. Some time in the year 1926, a portion of the land in village Bhadroya was acquired for the Kangra Valley Railway and a sum of Rs. 1,539-7-0, was awarded to Mt. Melo. On an objection by the appellant this amount was deposited in the Court of the Senior Subordinate Judge, Gurudaspur, with a direction to pay the intrest on the amount to Mt. Melo.

3. On 28-9-1944 Mt. Melo died and the Revenue Courts ordered mutations in respect of the lands in the three villages in favour of the respondent as the daughter of Gurdial.

4. On 10-3-1945 the appellant filed the suit out of which this appeal arises against the respondent for a declaration that he was entitled to the lands mentioned in the plaint as well as to the sum of Rs. 1,539-7-0 in preference to the respondent under the custom governing the parties whereunder the collaterals of the last male holder excluded the daughter.

5. The respondent contested the suit mainly on the grounds-

(i) that the suit for a mere declaration was not maintainable,

(ii) that the parties were governed by Hindu Law and not by custom,

(iii) that the appellant was not a collateral of Gurdial at all,

(iv) that the properties in suit were not ancestral, and

(v) that there was no custom whereunder the collaterals of the father who was the last male holder, excluded the daughter from succession to the self-acquired property of her father.

The Subordinate Judge in his judgment pronounced on 31-10-1946 held-

(i) that the lands it suit being in possession of tenants, the suit for a declaration of title thereto was maintainable but the suit for a declaration in respect of the sum of Rs. 1,539-7-0 was not maintainable in view of the provisions, of the Indian Succession Act relating to succession certificates,

(ii) that the parties were governed by custom and not by Hindu Law,

(iii) that the appellant was a collateral of Gurdial within four degrees,

(iv) that the land in Khata No. 2 of village Kingarian was ancestral while the rest of the lands in suit were non-ancestral, and

(v) that there was a custom according to which a daughter was excluded from inheritance by the collaterals up to the fourth degree with respect to ancestral as well as self-acquired property of the last male holder as laid down in the case of -Buta Singh v. Mt. Harnamon , AIR 1946 Lah 306 (A).

In the result, the Subordinate Judge decreed the suit in respect only of the lands in suit and ordered the parties to bear their own costs.

6. Against this judgment and decree the respondent preferred an appeal to the Lahore High Court. The appellant preferred cross-objections against the order as to costs and against the finding that the lands in the three villages except the land in Khata No. 2 of village Kingarian were non-ancestral. After the partition of India the appeal was transferred to the High Court of East Punjab.

7. By its judgment dated 28-7-1949 the East Punjab High Court allowed the appeal and dismissed the cross-objections on the following findings :

(i) that the suit for declaration of title to the lands was maintainable as all the lands in suit were in the possession of tenants,

(ii) that the lands in suit except the land in Khata No. 2 of village Kingarian were non-ancestral and

(iii) that according to the custom prevailing in the Gurdaspur district a daughter was entitled to succeed to non-ancestral property in preference to collaterals even though they were within the fourth degree.

The High Court accordingly modified the decree of the Subordi