JUDGMENT Arun Kumar Goel, J.—When further hearing in this case commenced, learned Counsel submitted that though appeal was admitted on following substantial question of law No. 1 framed alongwith the appeal, but according to both of them, it is required to be recast : "Whether under the Kangra Customary Law, the ancestral co-parcenary property of the last male owner, who dies issueless is presumed to be ancestral and the collateral, who is the nearest in degree is entitled to get the same?" 2. They further submitted that after the aforesaid substantial question of law is recast, they do not need any time because according to them, they are ready to argue the matter. Substantial question of law and its recast is as under : "Whether under Kangra customary law ancestral property in the hands of an issueless male owner continues to be ancestral in nature or is his exclusive property of such a holder. If it held to be exclusive property, whether alienation made by him can be challenged by the reversioner?" 3. Admitted facts of this case are that Udami and Duni Chand were real brothers. They had another brother also. Udami sold part of his land to Chaukas, hereinafter referred to as defendant No. 1, in this appeal. Sale made by Udami, hereinafter referred to as the defendant No. 2, in favour of Chaukas was challenged by Duni Chand, hereinafter referred to as the plaintiff in this appeal. In this context, it may be noted that Duni Chand died during the pendency of the appeal and his legal representatives had been brought on record vide this Courts order dated 13.9.2004. They are now respondents in this appeal. % 4. Grounds of challenge were, that the land was ancestral qua plaintiff and defendant No. 2. Since they belonged to Gaddi agriculture community, they were governed by custom in the matter of alienation and succession. Therefore ancestral property could not be sold without legal necessity. Thus a declaration was sought to the effect that the sale in favour of the defendant No. 1 being false, fictitious, without consideration and without any legal necessity, against law and custom, as such was null and void and would not effect the reversionary right of the plaintiff, on the death of defendant No. 2. 5. This suit was contested and resisted by defendant No. 1. 5. This suit was contested and resisted by defendant No. 1. Estoppel, suit being not maintainable, plaintiff having no locus standi, as well as cause of action and the suit being collusive were set up as preliminary objections. On merits regarding nature of suit land it was pleaded, that it is not ancestral qua the plaintiff and defendant No. 2. Rather it was the self acquired property of alienor. Other averments regarding Gaddis being governed by agriculture custom etc. were also denied. In replication filed by the plaintiff, pleas urged on behalf of defendant No. 1 which were contrary to the facts detailed in the plaint were denied and those in the plaint were reiterated. . On the aforesaid pleadings, the trial Court framed the following issues:— 1. Whether the suit land is ancestral qua the plaintiff and defendant No. 2, as alleged? OPP 2. Whether the plaintiff and defendant No. 2 are governed by Agriculture custom of Kangra District in the matters of alienation and succession of ancestral property? OPP 3. Whether the sale deed dated 26.121986 is false, fictitious and without consideration and legal necessity, as alleged? OPD 4. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 5. Whether the suit is not maintainable? OPD 6. Whether the plaintiff has no locus standi? OPD 7. Whether the plaintiff has no cause of action? OPD 8. Whether the suit is collusive between the plaintiff and defendant No. 2? OPD 9. Relief. 6. Suit was dismissed in view of findings on Issue No. 1 in the negative. Issue No. 2 was decided in favour of the plaintiff. Under Issue No. 3 it was held that sale was for consideration but not for legal necessity. Issues No. 4 to 8 were decided in the negative. 7. In the appeal filed by plaintiff, decree has been reversed by the learned first appellate Court. Consequently, while setting aside the decree of the trial Court, suit was decreed granting declaration in favour of the plaintiff and against both the defendants to the effect, that the sale made by defendant No. 2 in favour of defendant No. 1 on 26.12.1986 shall have no effect whatsoever on the reversionary rights of Duni Chand after the death of Udami. 8. Defendant No. 1 is aggrieved from the appellate decree, and as such he has filed the present appeal. 8. Defendant No. 1 is aggrieved from the appellate decree, and as such he has filed the present appeal. This was admitted on 15.12.1995 on the substantial question of law No. 1 framed with the appeal. It has been recast today. Heard learned Counsel. 9. Before dealing with the submissions urged at the time of hearing of this appeal, another fact that needs to be noted here is that Udami was issueless, when he effected the sale of the suit land on 26.12.1986. He also died issueless. So far his being issueless at the time of sale and even during the pendency of the suit is concerned, this fact is clearly established in no uncertain terms from the statement of PW-1, attorney and son of Duni Chand plaintiff. He stated in his cross-examination that it is correct that Udami has no son. Similarly. DW-Chaukas, defendant No. 1 had also stated so in his examination-in-chief. Further admittedly Udami died during the pendency of this appeal. CMP(M) No. 393/2002 was filed. It was mentioned in this application that Udami had died issueless and his interest will devolve upon his brother Duni Chand and thereafter on his (Duni Chands) legal representatives. It was further pleaded in this application that because Udami died issueless, his interest devolved upon Duni Chand. He also died when this appeal was pending, thus his estate was to be represented by his sons, namely, Mehar Singh and Prem Chand. Reply to this application has been filed by the proposed legal representatives i.e. sons of Duni Chand. Udami having died issueless was not denied as a question of fact in reply to this CMP(M). What is the effect of Udami being issueless on the date of sale and during the pendency of the appeal and also at the time of death will be material in the determination of this case. 10. In Mullas Hindu Law, First Reprint, 1999 Edition, in paragraph-223 (Page-326), matter relating to property inherited from paternal ancestor has bean dealt with. It is clearly mentioned in it that the essential feature of ancestral property according to Mitakshara law is, that the sons, grandsons and great-grand-sons of the person who inherits it, acquire an interest in it by birth and the rights attached to such property at the time of their birth. It is clearly mentioned in it that the essential feature of ancestral property according to Mitakshara law is, that the sons, grandsons and great-grand-sons of the person who inherits it, acquire an interest in it by birth and the rights attached to such property at the time of their birth. If a person has no son, grand-son or great grand-son in existence when he inherits the property, he holds such property as absolute owner thereof and he can deal with it as he pleases. Illustration (c) under this paragraph-223 is in the following terms : "(c) A inherits certain properties from his father. A has no son, grandson, or great-grand-son, but he has a brother (or a paternal uncle). The brother (or uncle) does not take any interest in the property by birth. As regards the brother or uncle the property inherited by A is his separate property. A may therefore sell or mortgage it or make a gift of it to any one he likes, or he may dispose of it by will.’ 11. This question directly came up for consideration before the Honble Supreme Court in the case of Smt. Dipo v. Wassan Singh and others, AIR 1983 Supreme Court 846. After placing reliance on Mullas Principle of Hindu Law supra, what was held and is relevant for deciding this appeal was as under: "Smt. Dipo, plaintiff in Suit No. 8 of 1962 in the Court of the Subordinate Judge 1st Class, Amritsar is the appellant in this appeal by special leave. She sued to recover possession of the properties which belonged to her brother, Bua Singh, who died in 1952. She claimed to be the nearest heir of Bua Singh. The suit was filed in forma pauperis. The suit was contested by the defendants who are the sons of Ganda Singh, paternal uncle of Bua Singh. The grounds of contest were that Smt. Dipo was not the sister of Bua Singh and that even if she was the sister, the defendants were preferential heirs according to custom, as the whole of the land was ancestral in the hands of Bua Singh. The learned Subordinate Judge held that the plaintiff, Smt. Dipo was the sister of Bua Singh. He found that most of the suit properties were ancestral properties in the hands of Bua Singh, while a few were not ancestral. The learned Subordinate Judge held that the plaintiff, Smt. Dipo was the sister of Bua Singh. He found that most of the suit properties were ancestral properties in the hands of Bua Singh, while a few were not ancestral. Proceeding on the basis that according to the custom, the sister was excluded by collaterals in the case of ancestral property while she was entitled to succeed to non-ancestral property, the learned Subordinate Judge granted a decree in favour of the plaintiff for a 2959/34836 share of the plaint Alaf schedule lands and a 13/ 80th share of the land described in plaint Bey schedule. The plaintiff preferred an appeal to the District Judge, Amritsar. The appeal was purported to be filed in forma pauperis. It was dismissed on the ground that the plaintiff did not present the appeal in person as required by Order 33 Rule 3. The defendants also preferred an appeal, but that was also dismissed. There was a second appeal to the High Court of Punjab and Haryana by the plaintiff. The second appeal was dismissed as barred by limitation. It appears that a copy of the trial Courts judgment was not filed along with the memorandum of second appeal. Though the memorandum of second appeal was filed within time, the copy of the decree was filed after the expiry of the period of limitation and it was on that ground that the second appeal was dismissed. 2. We do not think that the High Court, was justified in dismissing the second appeal on the ground of limitation. The defect was technical as the second appeal itself had been presented in time. It was only a copy of the trial Courts judgment that was filed after the expiry of the period of limitation. The delay in filing a copy of the trial Courts judgment should have been condoned and the second appeal should have been entertained and disposed of on merits. We are also satisfied that the learned District Judge was in error in dismissing the appeal on the ground that the appellant-plaintiff had not herself presented the memorandum of appeal. The appeal had been admitted by the District Judge earlier and there was no point in dismissing it thereafter on the ground that the memorandum of appeal had not been presented by the party herself. The appeal had been admitted by the District Judge earlier and there was no point in dismissing it thereafter on the ground that the memorandum of appeal had not been presented by the party herself. Rules of procedure are meant to advance the cause of justice and not to short circuit decision on merits. We have no option, but to set aside the judgments of the District Judge and the High Court. Instead of sending the case back to the District Judge for disposal on merits, we have ourselves heard the appeal on merits. The finding that Smt. Dipo is the sister of Bua Singh is a concurrent finding and we accept it. We also proceed on the basis that according to the prevailing custom of the area, collaterals and not the sister are preferential heirs to ancestral property in the hands of a propositus, while the sister and not the collateral is a preferential heir in regard to non-ancestral property. We must add here that we are not quite satisfied that the custom has been properly established, but for the purposes of the present case, we proceed on the basis that the custom has been established. But that is not the end of the problem before us. No doubt the properties which have been found by the lower Courts to be ancestral properties in the hands of Bua Singh are properties which originally belonged to Bua Singhs ancestors. But Bua Singh was the last male holder of the property and he had no male issue. There was no surviving member of a joint family, be it a descendant or otherwise, who could take the property by survivorship. Property inherited from paternal ancestors is, of course, ancestral property as regards the male issue of the propositus, but it is his absolute property and not ancestral property as regards other relations. In Mullas Principles of Hindu Law (15th Edition), it is stated at page 289: "...........if A inherits property, whether movable or immovable, from his father or fathers father, fathers fathers father, it is ancestral property as regards his male issue. In Mullas Principles of Hindu Law (15th Edition), it is stated at page 289: "...........if A inherits property, whether movable or immovable, from his father or fathers father, fathers fathers father, it is ancestral property as regards his male issue. If A has no son, sons son, or sons sons son in existence at the time when he inherits the property, he holds the property as absolute owner thereof and he can deal with it as he pleases.....A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons sons and sons sons sons, but as regards other relations he holds it, and is entitled to hold it, as his absolute property." Again at page 291, it is stated: "The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession." 3. We are, therefore, of the view that the Lower Courts were wrong in refusing to grant a decree in favour of the plaintiff as regards property described by them as ancestral property. The defendants were collaterals of Bua Singh and as regards them the property was not ancestral property and hence the plaintiff was the preferential heir. The plaintiff was entitled to a decree in respect of all the plaint properties. The judgments and decrees of the learned Subordinate Judge, District Judge and High Court are set aside and there will be a decree in favour of the plaintiff for all the plaint properties. The plaintiff is also entitled to get her costs throughout from the defendants. The defendants will pay the Court-fee due to the Government in the suit, appeal, second appeal and the appeal to this Court. Order accordingly." 12. Faced with the above situation, learned senior Counsel appearing for the respondents, (i.e. the sons of Duni Chand plaintiff) urged, that the conclusion arrived at by the first appellate Court below call for no interference. The defendants will pay the Court-fee due to the Government in the suit, appeal, second appeal and the appeal to this Court. Order accordingly." 12. Faced with the above situation, learned senior Counsel appearing for the respondents, (i.e. the sons of Duni Chand plaintiff) urged, that the conclusion arrived at by the first appellate Court below call for no interference. As according to him, those are based on proper appreciation of evidence and correct application of law. With a view to advance the case of his clients, Shri Gautam supported the judgment of the appellate Court below and also by placing reliance in Smt. Sheela Devi v. Mohan Sarup and others, (AIR 1987 SupremeCourt 1071) and Arjan Singh v. Smt. Pingle Devi and others, (1992 (2) Sim. LC 295). 13. So far as decision of this Court in 1992 (2) Sim. LC 295 (supra), is concerned, it neither governs the case of Mr. Gautams client either in law or in fact. Similarly so far decision in the AIR 1987 Supreme Court 1072 (supra), is concerned, it is wholly applicable in this case. Again at the risk of repetition, it may be noticed that property in the hands of Udami that was inherited by him, ceased to be ancestral in nature and as alrady noted from the statement of PW-1 and DW-1, and facts mentioned in CMP(M) No. 393/2002, it is clear that till the date of his death, he was issueless. What falls from this is that he was the absolute owner of the suit property. Consequently he was entitled to have dealt with it in any manner he liked. This is the ratio of the Supreme Court in the case of Smt. Dipo v. Wassan Singh supra. 14. No other point is urged. 15. In view of the aforesaid discussion, recast substantial question of law noted hereinabove is decided in favour of Chaukas, defendant No. 1, the appellant and by holding that the property in the hands of deceased defendant No. 2, ceased to be ancestral in its nature and character, so as to enable him (the plaintiff) to claim the declaratory decree that was granted by the first appellate Court. Resultantly, the judgment and decree passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 54-P/XIII/94 (1992), dated 16.7.1994, in appeal titled Duni Chand v. Chaukas and another, is hereby reversed and set aside and as a consequence of it, suit filed by plaintiff Duni Chand against Chaukas as wall as his (Duni Chands) deceased brother Udami, the defendant No. 2 challenging the impugned sale, shall stand dismissed, leaving the parties to bear their own costs. 16. All the pending applications stand disposed of, and interim orders if any shall stand vacated forthwith. Appeal dismissed. -