JUDGMENT :- This is a plaintiffs appeal from the judgment and decree of the learned District Judge of Mandi dated 27-11-1951 allowing the appeal of the defendant, the State of Himachal Pradesh, and dismissing the suit of the plaintiffs for possession of certain land.

2. The land in suit originally belonged to one Fattu and on his death his widow Mt. Ronku succeeded to it with a life interest. Mt. Ronku died on 20th Katik 2001 B. (corresponding roughly 1944 A.D.). On 14-10-1948 the Deputy Commissioner of Mandi passed an order escheating the land to the Government. The present suit was thereupon filed on 9-6-1951 by the three daughters of Mt. Ronku by Pattu for the aforesaid relief.

3. The trial Court decreed the suit. While holding that the plaintiffs were the daughters of Fattu, and that as such they were not entitled to succeed to the property of their father Fattu under the then State laws, it decreed their suit on the finding that wader the present law there was no bar against the rights of succession of daughters.

4. On an appeal by the defendant State, the learned District Judge reversed the decision of the trial Court on the finding that the new laws, which came into force on 25-12-1948, were not applicable in the present case, and that under the old law which was applicable daughters had no right to succeed. The lower appellate Court was clearly in error in holding that there was any new law which came into force on 25-12-1948 governing the facts of the present case. That was the date on which the Himachal Pradesh (Application of Laws) Order came into force. A Schedule was appended to this Order containing certain Central and Punjab Acts. By S.3 of the Order those enactments were applied to Himachal Pradesh. Section 7 laid down that all laws previously in force in Himachal Pradesh corresponding to the said enactments stood repealed. The only enactment which the learned counsel for the defendant-respondent could point out was S.19 of the Mandi Land Revenue Regulation No.VIII of S.1975. If that provision be applicable, there is no doubt that it stood repealed since 25-12-1948 because of the enforcement in Himachal Pradesh of the corresponding law as contained in the Punjab Land Revenue Act. The learned Government Advocate however conceded that S.19 of the said Regulation laid down a rule of succession applicable only in the case of collaterals but not in the case of lineal descendants of the last male holder, as for example a son or daughter. It is manifest therefore that by the passing of the Application of Laws Order there was no old law prevalent in the former State of Mandi which stood repealed. The disposal of the present case by the learned Distrial Judge therefore on the ground of the repeal or otherwise of any old law on 25-12-1948 was erroneous.

5. On merits I heard learned counsel for the parties twice. At first I was of the opinion that as the custom excluding daughters from inheritance pleaded by the defendant was admitted by the plaintiffs own witnesses the present appeal should fail. After dictating a judgment to that effect it struck me whether the custom set up by the defendant was not void due to inconsistency with any of the provisions of the Constitution. The appeal was accordingly reheard. When the appeal was reheard the learned counsel for the plaintiffs-appellants argued not only with reference to the provisions of the Constitution but also with reference to the question which had already been argued before. The learned counsel fear the defendant-respondent replied to him with reference to both, and he raised no objection that the learned counsel for the plaintiffs-appellants was not entitled to argue the appeal with reference to the provisions of the Constitution because he had not done so previously. He did not also raise any objection as to the rehearing of the appeal on points argued before. Indeed, he could not have validly done so for it is certainly open to a Court to suggest a point of law and he

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