( 1 ) THIS appeal has come before us on reference by a learned Single Judge of this Court, as in his opinion it raises a question of importance and some difficulty, touching which there is no decision and that it should, therefore be decided by a Bench. The question posed is whether a custom excluding daughters would also exclude daughters daughter from inheritance when at the time the custom grew, the daughters daughter was not an heir under the Hindu Law.

( 2 ) THE appeal has arisen out of a suit instituted by respondents Hansraj Singh and Vindraban singh for damages and recovery of possession of cultivatory plots mentioned in annexure a and the grove mentioned in annexure b to the plaint. The suit was instituted against twelve defendants. It was alleged in the plaint that one Jagannath Singh who was the owner of the property in suit had three daughters Smt. Ramraj Kunwar, Smt. Mainatha Kunwar and Smt. Bhoga Kunwar. That Hansraj Singh, plaintiff No. 1 is the son of Smt. Ramraj Kunwar, vindraban Singh plaintiff No. 2 and Smt. Parvati Kunwar defendant No. 12 (now respondent No, 1) are the son and daughter respectively of Smt. Mainatha Kunwar and Rameshwar Bux Singh defendant No. 11 (now respondent No. 4) is the son of Smt. Bhoga Kunwar. Jagannath Singh died before the 2nd settlement and on his death Smt. Bhagwani Kuer, his widow, succeeded to his property as a Hindu widow for her lifetime and that on the death of smt. Bhagwani Kuer which took place on 28th April, 1938, the plaintiffs and defendants Nos. 11 and 12 remained as the only heirs of Jagannath Singh and Smt. Bhagwani Kuer, Lastly, it was alleged that defendants Nos. 1 to 10 were in illegal possession over the property in suit, hence the plaintiffs were entitled to recover possession of it from defendants Nos. 1 to 10. About defendants Nos. 11 and 12 it was alleged that they had also right in the property but as they did not join the plaintiffs in the suit they had been arrayed as defendants and that, if they so desired, defendants Nos. 11 and 12 could also join as plaintiffs and plaintiffs Hansraj Singh and vindraban Singh would have no objection thereto. According to the plaintiffs the suit was filed in the interests of defendants Nos. 11 and 12 also.

( 3 ) THE suit was contested by defendants Nos. 1 to 10 alone.

( 4 ) ON the pleadings of the parties the following issues were framed :

1. Whether plaintiffs and defendants Nos. 11 and 12 are heirs of Jagannath Singh and Mst. Bhagwani Kunwar? If so they are entitled to inherit. the entire property in suit 2. Is there a local, tribal and family custom for exclusion of daughters, daughters son, daughters daughter from inheritance. If so to what effect? 3. Is the suit barred by limitation? 4. What amount of mesne profits are plaintiffs entitled to got?

( 5 ) WHAT relief, if any are plaintiffs or any of them were entitled?

5. On the evidence the trial Court and the lower appellate Court found that the property in suit did not belong to Jagannath Singh exclusively but that it was shared half and half by him and his brother Shiva Mangal Singh. They found that Smt. Bhagwani held the share of Jagannath Singh as a life estate holder but that she had become absolute owner by being in possession of the share of Shiva Mangal Singh adversely for more than twelve years and that therefore it had become her stridhan and would pass to her personal heirs under the Mitakshara law. They also found that the plaintiffs and defendants Nos. 11 and 12 were the grand-sons and grand-daughter respectively of Jagannath Singh as alleged in the plaint.

( 6 ) BOTH the Courts repelled the defence contention that the suit was not within time. They found on the evidence of record that Smt. Bhagwani Kuer died on 28th April, 1938 and not on 5th april, 1938, as alleged by the defendants. As the suit was instituted on the 24th April, 1950, they held that it was within time.

( 7 ) THE trial Court had dismissed the suit of the plaintiffs on the gr