1. This appeal raises two questions concerning the devolution of property belonging to a male proprietor of the Rohtak District who dies leaving behind him no male lineal descendant and no agnates. The first is whether the cognates can succeed in preference to the proprietary body of the village and the second whether in the absence of cognates the proprietary body can succeed in preference to the Crown even when it consists of a heterogeneous collection of various tribes none of whom have any connection or relationship smith the founder of the village. The answer to the first question is clearly in the affirmative and to the second equally clearly in negative.
2. It appears that one Moler, a Jat proprietor of village Diwana of Rohtak District, died leaving behind him a widow and a certain amount of ancestral landed property. The property belonging to him was mutated in the name of the widow Mt. Dhari and on the latter's death on 30th July 1943, in the names of the three daughters of his brother Jitu. The plaintiffs who claim to be the proprietors of Thulla Udhan of the village have brought the present suit for a declaration that the mutations of property in favour of the daughters of a brother of the deceased land owner were incorrect and that the plaintiffs who are members of the proprietary body are entitled to succeed to the estate in preference to the three daughters of Jitu. The trial Court granted the declaration prayed for, but the Dis-trict Judge came to a contrary conclusion and dismissed the plaintiffs' suit with costs. The plaintiffs are dissatisfied with the order and have come to this Court in second appeal.
3. It is common ground that according to the general agricultural custom of the Province the property of a deceased proprietor devolves in turn on the male lineal descendants, the widow and other female heirs, the agnates, the cognates, the proprietary body if the village is a homogeneous one and the Crown. It is further admitted that if the parties to this litigation were governed by the general agricultural custom, the daughters of Jitu would succeed in pre. preference to the proprietors (a) because cognates take precedence over proprietors, and (b) be cause the proprietors of Thulla Udhan have no connection or relationship with the founder of the village or with any member of the original proprietary body.
4. Two propositions clearly emerge from the authorities cited at the bar. The first is that cognates take precedence over strangers. It has been held repeatedly that among the agricultural tribes of the Punjab generally in the absence of all agnates of a childless proprietor any cognate, whether male or female, however distantly related to him, is entitled to succeed in preference to a stranger, vide Tarasingh v. Bibi Suraj Kaur A.I.R. 1940 Lah. 416 and Fazal Eaqv. Mt. Said Nur A.I.R. 1948 Lah. 113. The second proposition is that the property of a man who leaves no blood relations passes to village proprietors, provided those proprietors are connected with or are related to the founder of the village, or with any member of the proprietary body. In Shamal v. Sardha 61 P.R. 1898, it was held that the presumption in favour of the village proprietors cannot be drawn where the proprietors are a heterogeneous body and where possession is essentially the measure of right. In Harnam Singh v. Partap Singh 102 P.R. 1906, a Division Bench of the Chief Court expressed the view that it has never been definitely decided that the members of a village community are the ultimate heirs of any co-sharer among them who dies without heirs in every instance, without regard to the constitution of the village or to the facts of the particular case which comes up for decision. In Ibrahim v. Barkat 323 P.L.R. 1913, it was held that where a proprietor governed by the Customary law dies, without leaving any heirs, his property will go to the proprietors of the deceased's patti, provided the patti is owned by members of one got forming a compact homogeneous community, a fact from which the Courts may draw a presumption in favour of their descent from a common ancestor. In Duni Chand v. Lekhu A.I.R. 1927 Lah. 255, Tek Chand, J. held that in the event of a deceased proprietor dying without heirs his estate would descend to the proprietary body only if the village is a homogeneous one and complete community of interest is maintained. Where no general community of interest between the several land holders in the village has been preserved, the estate of an heirless proprietor escheats to the Crown and does not devolve upon the proprietary body.
5. It will be seen from the above authorities that it is a well established custom of the Province that the village proprietary body succeeds to the estate of a deceased proprietor if, and only if, the community is homogeneous and not if the community is heterogeneous. So strong is the custom that in Badamaii v. Net Ram 57 P.R. 1912, a Division Bench of the Chief Court were constrained to hold that the general rule being that heirless land escheats to the Crown, the onus of proving that the proprietors of the whole patti were entitled to succeed was on plaintiffs, notwithstanding their possession. It was held further that neither the entry in the riwajiam in favour of the proprietors of the patti who are of the same got, nor the entry in the wajib-ul-arz of the village allowing the proprietors of the village to take possession of the land of a proprietor who leaves the village and is lost sight of and has no heir, could establish the claim set up by plaintiffs and their suit must consequently fail.
6. Mr. Mital who appears for the plaintiffs in this case contends that his clients are regulated by the customary law as it prevails in the District of Rohtak and that the said law is different in material particulars from the general customary law as it prevails in the rest of the Province. Question 61 as it appears in the Customary Law of the Rohtak District compiled by Mr. Joseph in the year 1911 is in the following terms:
Q. 61.--When a man dies leaving no male lineal descendants, no widow and no daughters or daughters' sons, upon whom will the inheritance successively devolve?
Then follows the answer which is to the effect that in the absence of male lineal descendants or widow the following succeed in turn, that is to say: (1) grandfather; (2) father; (3) grandmother; (4) mother; (5) brothers or their male lineal descendants; (6) father's brothers or their male lineal descendants; (7) other male agnates. Then follows a note which declares that the order cited above is more than doubtful and that on re-attestation the selected men gave the order as follows: (1) father; (2) mother; (3) own brothers and descendants; (i) grandfather and descendants; (5) grandmother; (6) other male agnates. The second note declares that below this owners of the thullah and pannah are always recognised. After yakjadis have been exhausted, come fellows of the got in the same thullah, fellows of the got in the same pannah, fellows of the got in the same village, other owners in the shamilat of thullah, pannah or village.
7. The answer to Question 71 shows that all tribes throughout say that the collaterals, however distant, will succeed, no matter if they are of the same thullah or pannah or not, so long as they belong to the village. Collaterals not holding in the village would not succeed. Failing any collaterals all owners of the thullah or pannah will succeed rateably according to their existing holdings.
8. The answers to these questions, if literally construed, would lead one to the two conclusions, namely, (a) that cognates cannot succeed in preference to strangers, and (b) that owners of the thullah and pannah succeed after male agnates even though they are not connected with or descended from the founder of the village.
9. The question which requires decision in the present case is whether these entries in the riwaj-i-am have established the existence of a custom which is peculiar to the Rohtak District and which is at variance with the general agricultural custom prevailing in the rest of the Province. In Mt. Subhani v. Nawab A.I.R. (28) 1941 P.C. 21, their Lordships of the Privy Council propounded the principles which should regulate the amount of weight which should be attached to entries in compilations of Customary law. They observed that though the entries in the'riwaj-i-am are entitled to an initial presumption in favour of their correctness, irrespective of the question whether or not the custom as recorded is in accord with the general custom, the quantum of evidence necessary to rebut this presumption would, however, vary with the facts and circum-stances of each case. Where, for instance, the riwaj-i-am lays down a custom in consonance with the general agricultural custom of the Province, very strong proof would be required to displace this presumption; but where, on the other hand, this is not the case and the custom as recorded in the riwaj-i-am is opposed to the rules generally prevalent the presumption would be considerably weakened. Likewise, where the riwaj-i-am affects adversely the rights of females who had no opportunity whatever of appearing before the Revenue authorities, the presumption would be weaker still and only a few instances would suffice to rebut it.
10. Answers to Questions 61 and 71 do undoubtedly declare that the proprietary body succeeds after the heirs, but these answers can-not be presumed to rebut the existence of a custom which is different from the general agricultural custom of the Province. Persons who are charged with the duty of ascertaining custom are usually Patwaris or other petty Revenue officials who submit their reports, to the higher authorities. Their knowledge of Customary law is inadequate and they are often unable to put the necessary questions. The persons from whom enquiries are made are often illiterate village Jats who are ignorant of the agricultural custom prevailing in the ilaqa and are not in a position to answer the intricate questions of Customary law which are put to them.
11. The answer to Question 61 makes it quite clear that the persons who were examined were able to trace the devolution of property to male agnates. They were unable to go beyond agnates, though it is well recognised that a cognate, whether male or female, succeeds in preference to a stranger. Certain selected men were then questioned. They are equally silent about cognates. They stated that owners of thullahs or pannahs succeed to property in the absence of male agnates. No question appears to have been put to them whether property can devolve on cognates in preference to the members of the proprietary body. Again they were not asked whether the proprietary body succeeds even when it is not found to have descended from the same common ancestor as the deceased land owner and even when no complete community of interest between the several land owners has been preserved. What the answers would have been if the questions had been put can only be surmised. The men may have replied that cognates take precedence over strangers. They may have replied that the custom followed in the Rohtak District is in consonance with the custom followed elsewhere in the Province and that the proprietary body of the village succeeds only when it consists of a tribe which is related to or connected with the founder of the village or a member of the original proprietary body. Little or no reliance can be placed on an answer such as was given to Question 61. I am clearly of the opinion that the plaintiffs have not been able to establish that the custom by which they are regulated is different from the custom which prevails in the other parts of the Province.
12. I am inclined to follow the view taken in Badaman v. Net Ram 57 P.R. 1912 and to hold that, notwithstanding the entries in the riwaj-i-am of the Rohtak District, the proprietary body of the village which is not' homogeneous in character cannot succeed in preference to the cognates.
13. For these reasons it seems to me that notwithstanding the entries in the riwaj-i-am of the Rohtak District the three daughters of Jitu who are cognates of Molar are entitled to succeed to the property of Molar in preference to the proprietors who are not related to the deceased in any way. The order of the lower appellate Court must, therefore, be affirmed and the appeal dismissed with costs.