1. In this second appeal the sole question for decision is whether the estate of a proprietor dying without leaving any heirs the inheritance goes to the 'pattidars1 belonging to all tribes or to those who belong to the same tribe or 'got' as the deceased owner.
2. The land in dispute belonged to Bhola, a Rajput Chohan of Kurali. On the 18th of January, 1942, he died without leaving any heirs. On the 6th of October, 1943, the land was mutated in favour of Patti Mohar Singh irrespective of the caste to which they belonged. On the 11th of May, 1946, the Rajput proprietors of the Patti brought a suit for declaration that they were entitled to exclude proprietors De-longing to tribes other than Chohan Rajputs. The village is a heterogeneous one. Both the Courts below have held, relying on documents Exhibits P. 7 and P. 15 giving the custom of this Tehsil, that Rajputs would exclude the other proprietors in the Patti with regard to succession to the estate of Bhola.
3. Mr. Pandit has submitted that on a correct interpretation of the entries in Exhibits P. 7 and P. 15 all the 'pattidars' have equal rights of succession. The entry in Exhibit P. 15 is as follows:
'Q. Who is the heir of the estate of a proprietor who dies without leaving any heirs or a Will? Is it Government or 'patti tarf' or 'shamilat deh' etc. or the 'jagirdar'? A. In that event, first the 'pattidars' and after that 'shamilat hasf rasd khewat,' but with the proviso that 'maliks' of 'ghair qom', i. e., 'pattidars' belonging to other tribes will not be entitled. Only the persons belonging to the same tribe as the deceased will share in his estate. The Government or the 'jagirdar' has got no right.'
Mr. Pandit would read this answer as if the proviso applied only to the second portion of it, i. e., when the inheritance is by the 'shamilat deh,' whereas Mr. Sibal submits that the proviso applies to both.
4. Besides these two documents, Exhibits P. 7 and P. 15, the plaintiffs have relied on a judgment, Exhibit P. 18, of Mr. Ghansham Das, District Judge, Ambaja. In that case the custom relied upon was of the Ambala Tehsil. There it is distinctly laid down that in the case of a person dying heirless and intestate, the right of succession shall be first in the proprietors of the Thulla, the Patti and the Shamilat Deh in which the deceased died, that inside the Thulla, the Patti and Shamilat Deh, the right shall in the first instance be in the persons of the same 'got' and in the absence of the persons of the same 'got' in the persons of the same tribe. This custom seems to be very explicit and I do not think that this could have led to any other conclusion but that which the learned Judge came to,
5. The next document which the plaintiffs have placed reliance on is Exhibit P. 19 which was again a case from Tahsil Ambala and the dispute was between the 'pattidars' belonging to the same 'got' as the deceased, and an adopted son, and it was held that they had a superior right to succeed. Exhibit P. 22 is a judgment of Mr. Gulwant Rai against which the appeal was: Exhibit P. 18. And finally there is Exhibit P. 21 where persons belonging to the same 'got' were held to be better heirs than the Crown. In my opinion, the learned District Judge has rightly held that these instances are of no value. It is not necessary to discuss Exhibits D. 1 and D. 2 which again do not seem to be of any very great value. We are thus left only with the statement of custom as contained in Exhibits. P. 7 and P. 1-5. The Senior Subordinate Judge has held that these documents show that in cases of succession to a proprietor leaving no heirs, 'pattidars' belonging to the same 'got' take preference over 'pattidars' belonging to a different 'got'. After a perusal of the custom as given in these two documents, I am unable to differ from the interpretation put upon it by the Courts below and I am of the opinion that on a correct interpretation of these documents the custom is that, where a proprietor dies without leaving any heirs, agnates or cognates or a widow, the estate is inherited by such 'pattidars' as belong to the same tribe as the deceased proprietor.
6. Mr. Pandit then submitted that this custom is opposed to general custom. I cannot hold that it is. In 'Dina v. Nur Moham-Mad,' AIR 1949 E. P. 225, Achhru Ram, J. held that proprietors of a Thulla, who are not homogeneous, do not by custom succeed in preference to the Crown. It is not a universal custom in the Punjab that in the absence of heirs, as in the present case, the proprietary body, to whatever tribe they may belong, succeed to the estate of the heirless proprietor and even if it is a special custom of this Tehsil, it is so recorded in Exhibits P. 7 and P. 15 and is presumptive proof in favour of the plaintiffs.
7. I therefore dismiss this appeal and affirm the judgment and decree of the Courts below but in the circumstances of this case I leave the parties to bear their own costs throughout.
8. I grant leave to appeal under the Letters Patent.