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Judgment
Gurnam Singh, J.—This second appeal arises out of a suit for possession. The suit relates to the inheritance of the property of one Sunder Singh a Bath Jat of village Bathan. He died issueless leaving his widow Mst Bhagwani who also died on 16-8-1990 Bk. Out of the suit land 88 big has and 14 bis was is under mortgage with possession with Defendants No. 2 and 20 big has and 10 bis was with a share in the Shamilat is under mortgage with Defendants No. 3. The remaining land measuring 46 big has and 8 bis was is in possession of the State Government through the tenants who pay rent to the Govern-ment. After the death of Mat. Bhagwani the Government entered into possession of this land as Sunder Singh had left no heir and the property escheated to the State.
The Plaintiffs instituted the present suit for possession of the entire land on the basis of their toeing collaterals as well as Pattidars of the last male holder. The Plaintiffs have also prayed for a declaration that they are entitled to receive the rent of the land in question from the Defendants. They have also sued for the recovery of Rs. 1200/-the rent already realized by the Government from this land. As already observed their claim is based on the following two grounds:
That they are collaterals of Sunder Singh deceased and
That in any case they being Pattidars of the Patti in which the suit property lies and the Patti being homogeneous were entitled to the suit land to the exclusion of the Defendants.
The Plaintiffs'' suit was resisted by the Government as well as the mortgagees. They pleaded that the Plaintiffs were not the collaterals of Sunder Singh deceased and that as Pattidars they were not entitled to succeed to his'' inheritance. The Government pleaded that the. land had escheated to them. The mortgagees further pleaded that some other owners in the Patti who are not made parties were necessary parties and according to their objection the. Plaintiffs'' suit on that account was not maintainable. The following issues were framed by the trial Court:
Whether Chhajju etc., etc., are necessary parties? On Defendants.
Whether the Plaintiffs can institute the suit with respect of the whole of the land in dispute? On Plaintiffs.
Whether the Plaintiffs are Pattidars and heirs of Mst. Bhagwani and entitled as such to the possession of the land, mesne profits and the declaration sought for On Plaintiffs.
Whether this Court has no jurisdiction to hear this case? On Defendants.
The trial Court found that the Pattidars who were not impleaded were not necessary parties to the suit and. the Plaintiffs if they succeeded in the suit could claim their own share of the dis-puted land. The Court also found that the plain-tiffs had failed to prove their collateral relation-ship with the last male holder Sunder Singh. The Plaintiffs according to the finding of the Court also failed to prove custom under which they were entitled to succeed to the inheritance of Sunder Singh deceased as Pattidars. The trial Court, therefore, dismissed the suit of the Plaintiffs leaving the parties to bear their own costs.
The Plaintiffs being dissatisfied with the judgment and decree of the trial Court appealed to the District Judge. The learned District Judge dismissed the appeal of the Plaintiffs on the ground that they had failed to prove their relationship with Sunder Singh the last male holder of the property in dispute and that they had also failed to prove custom in their favour entitling them to succeed to this property as Pattidars. He, however, found that the Plaintiffs had succeeded in showing that there was a community of interest among the Bath Jets of this Patti and thus they were a homogeneous community in the Patti. As a result he dismissed the suit of the Plaintiffs as they had failed to prove custom in their favour entitling them to inherit the property in dispute as Pattidars. The Plaintiffs have come up in second appeal to this Court.
The learned Counsel for the Appellants at the outset conceded that the Appellants had failed to prove their relationship with Sunder Singh whose inheritance is in question. The learned District Judge has already found that the Plaintiffs are not collaterals of the last male holder. In view of the position taken up by the learned Counsel for the Appellants this point need not be pursued further.
I am inclined to agree with the finding of the learned District Judge that the Plaintiffs have succeeded in proving that they are a homogeneous community in the Patti. (After discussion of the evidence His Lordship proceeded) In my opinion, therefore, there is a community of interest among these Jats and they are a homogeneous community in the Patti. This also finds support from the Kefiat Patti. I am, therefore, of the opinion that if the Plaintiffs succeed in establishing a custom in their favour entitling them to succeed to the property of a person dying issueless in their Patti they are entitled to a decree in their favour but in this case the Plaintiffs have failed to prove any such custom.
Learned Counsel for the Appellants has cited number of authorities in support of his contention that the Patti being homogeneous the Plaintiffs as Pattidars are entitled to a decree in their Javour for the inheritance of Sunder Singh. The first authority cited by him is Baldeva v. Ghisa AIR 1951 Simla 293 (A). In this case the decision was given by a Bench of the Punjab High Court on an application for permission to appeal to the Federal Court on the ground that a substantial question of law was involved.
Bhandari J. who wrote the leading judgment observed:
According to the general custom in the Punjab, the property of a person who leaves no blood relations passed to the proprietary body if the village is a ''homogeneous one and to the Crown if it is a heterogeneous one and the proprietors can show no connection or relationship with the founder of the village or with any member of the original proprietary body.
With utmost respect if I may say so this proposition, of law is too widely stated. I am unable to .accede that there is universal custom of this kind Prevalent the Punjab. Number of authorities were considered on the point in Kirpa Ram v. Udey Ram 77 Pun Re 1896 (B) and the conclusion arrived at by the learned Judge was that no such general custom could be laid down. During the Course of his judgment Chatterji J. observed:
On the whole we do not think that it has ever been definitely decided by this Court 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 the facts of the particular case which comes up for decision.
Apart from this in the case before the learned Judges of the Punjab the Riwaj-i-am of Sonepat Tehsil clearly laid down that
In the absence of any collaterals, the owners of the same Patti, took, and the village respectively will succeed to the property.
So the observation made by the learned Judge was more in the nature of an obiter dictum. According to the Riwaj-i-am of that place whatever may be constitution of the village the proprietors were entitled to succeed to the estate of a person dying without leaving any heir.
Next authority relied upon by the Appellants'' counsel is Waara v. Mangal'' 2 Pun Re 1911 -(Rev) (C). This case was decided by two Financial ''Commissioners sitting together. The learned Financial Commissioners laid down in their judgment the seven propositions which were applicable to the subject of escheat to the Crown. Out of them Nos. 3 and 4 are relevant to this case. They read as follows:
No. 3 The right of the proprietary body as a whole to succeed in case in which it exists is primarily based on real or assumed relationship v. to the holder of the land, or to the member of the proprietary body from whom the title was derived.
No. 4 Such a right should be assumed in the case of homogeneous estates or sub-divisions of estates, where the owners are all or nearly all of the same tribe as the last holder of the land or the members of the proprietary body from whom he derived his title.
It is a detailed judgment and has been approved later in some judgments of the Punjab High Court. I agree that the proprietary body in a homogeneous village is entitled to succeed to the estate of a proprietor dying heirless provided they can establish a custom in their favour for such inheritance. , it is mentioned in the same judgment that in 1882 the Government of India made enquiries regarding escheat in the different provinces of India., A reference was made to the Judges of the Punjab Chief Court and minutes by Barkley and W.H. Rattigan JJ are reproduced in this judgment. Barkley J. wrote:
Escheats are comparatively rare in the Punjab. One reason is that where the land is generally held by village communities, as is the case in this province, it is the usual practice to recognise the succession of the proprietary body to the lands of proprietor dying without heirs, and this is often provided for in the village administration papers prepared at settlement.
It is pertinent to observe that Barkley J. referred to village administration papers prepared at the time of settlement in support of such customs. In this particular case the claim of the Plaintiffs is not supported by the village administration papers. Barkley J. further observed:
In the Southern Punjab under Sikh rule, when wells rather than villages formed the proprietary units in direct relation with the Government, escheats were more strictly enforced than they are now, and the result was that wells or portions of wells with the land attached to them often become the property of Government.
Rattigan J. after quoting some cases concluded,
when there is a total failure of heirs the Crown takes by escheat under a general or universal law as paramount power.
The next authority relied upon by the learned Counsel for the Appellants is Ibrahim v. Bar-kat 323 PLR 1913 (D). This is a judgment by Agnew and Shadi Lal JJ. During the course of judgment the learned Judges observed:
We are inclined to attach importance to the fact that all the proprietors in the Patti belong to one Got which prove, that they form a community which is compact and homogeneous. There is authority for the view that from the fact that the proprietors belong to one Got the Courts may draw a presumption in favour of their descent from a common ancestor.
The learned Judges approved the decision of the Financial Commissioners referred to above:
2 Pun Re 1911 (Rev) (C)''. This authority, however, does not help the Appellants. In this case custom was established in favour of the proprietors entitling them to succeed to the estate of a proprietor dying without leaving any heirs. In connection with this, some observations made by the learned Judges can be quoted here with advantage:
We are, however, of opinion that the Plaintiff have succeeded in proving custom by which they, as proprietors of Patti, are entitled to the estate of Wally Muhammad We find that the witnesses for the Plaintiffs testify to other in stances in favour of succession of Pattidars Having regard to the instances mentioned by the witnesses and the fact that the Patti is owned by a compact community of one tribal Got we hold that the proprietors of the Patti have established a right of succession and their suit should be decreed.
The judgment, therefore, clearly shows that the learned Judges did not decide the case merely relying on 2 Pun Re 1911 (Rev)(C) This decision of the Financial Commissioners was, how-ever, taken into consideration, but in the case before the learned Judges the Plaintiffs had succeeded in proving custom in their favour to succeed to the estate of a proprietor dying heirless. ''77 Pun Re 1896 (B) is Anr. authority relied upon by the Appellants. This is a case in which proprietor died leaving only a widow and no her is. The widow gifted the property in favour of her brother''s sons. The widow also died and tier her death the proprietors of the Thula instituted a suit who claimed to succeed to the estate of:the last male holder. It was observed by Chatterjee J.
The members of a village community are not 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 the facts of the particular case which comes up for decision.
The Plaintiffs in this case failed to prove their superior right and their suit was dismissed. This authority, in my opinion, does not help the Appellants.
The last case relied upon by the learned Counsel for the Appellants is ''Budhi Singh v. Mohan Singh'' AIR 1916 Lah 301(1) (E). This is a case in which the mortgagor who was a ember of a village proprietary body died leaving no direct heirs. The Plaintiffs who were of the same tribe and Got as the mortgagor sued as members of the village proprietary body to redeem lands belonging to the mortgagor. The village was found to be homogeneous. The mortgagees though distantly related to the mortgagor were not proprietors in the village. It was held that the mortgagees had no right to succeed and that the Plaintiffs were entitled to redeem. During the course of judgment the learned Judges observed:
It seems to us that the only claimants to Ram Singh''s land whose right can legally be recognised are (1) Government; if it claims to succeed by right of escheat; and (2) the proprietary body of the village, provided that the village is homogeneous and does not consist of a number of proprietors of different tribes, religions and castes. In the present case Government has put forward no claim to the property and the village is of the homogeneous type.
This authority also does not help the Appellants. In this case the Government did not put forward the claim. In absence of such a claim naturally the proprietary body of homogeneous village would succeed.
It is conceded that the Plaintiffs have proved DO. Custom in their favour to cattle them to such to, the suit property either by oral or by documentary evidence. The plain-tills did not ''en allege any such custom in the plaint. Neither waj-i-am nor Wajib-u-arz has been produced support of their claim. In my opinion the us was on the Plaintiffs to affirmatively stealthier title to succeed to the property in question. It is admitted by the learned Counsel at the Plaintiffs are not collateral heirs of the it male holder. The learned Counsel has not been able to satisfy us that in the event of a proprietor dying heirless in that village the Plaintiffs as proprietors of the Patti are entitled to succeed to his estate. On the other hand the general rule is that in the event of a proprietor dying heirless his estate ordinarily escheats to the ''Government.
Para 28 of Digest of Civil Law for the Punjab Customary Law) is as follows:
Subject to the exception hereunder mentioned, in the event of a deceased proprietor dying without heirs his estate ordinarily escheats to Government,
The exception referred to in the Para lays down that in joint estates, where a complete community Of interest is maintained, the succession of the proprietary body is usually provided for by the Wajib-u-arz in such cases. It is, therefore, clear that ordinarily the estate escheats to the Government. The Plaintiffs, therefore, were bound to show that this general rule did not apply to t-heir case. The Plaintiffs did not lead any evidence either oral or documentary to show that this general rule did not apply. The question of onus was considered in ''Badaman v. Net Ram 57 Pun Re 1012 (F). The judgment was given by Hon''ble Johnstone J. and the Hon''ble Rattlgan J. During the course of judgment the learned Judges observed:
In our opinion ''onus probandi'' was upon plain-tiffs who claimed a declaratory decree affirming their right to the land to affirmatively establish their title, and this despite the fact that they happen to be in possession of the land. Admittedly they are not the lineal or collateral heirs of the deceased proprietor, and we know of no authority to the effect that when a village proprietor dies Without such heirs, the proprietors-of the Patti or of the village must be deemed to be entitled to succeed to his estate." The learned Judges further observed: "Their is no presumption that either Plaintiffs or Defendants are entitled to the property and as Plaintiffs ask the Courts to affirm, by decree, that all proprietors of the Patti are owners of that property, the burden of proving their claim lay heavily upon them and they were not en-titled to the decree unless and until they had succeeded in affirmatively establishing their allegations.
As already observed the general rule is that in the event of a proprietor dying without heirs, his estate ordinarily escheats to the Government. It was, therefore, incumbent on the Plaintiffs to-show that this general rule did not apply to their case. The Plaintiffs have failed to prove any custom in their favour entitling them to succeed to the properly in dispute. No such custom was even pleaded by the Plaintiffs in their plaint. In my opinion, therefore, the Plaintiffs'' have failed to prove custom by which they as proprietors of the Patti are entitled to the estate of Sunder Singh.
The lower appellate Court found that according to a notification dated 13-6-1912 A.D. all lands of heirless proprietors having no successors up to 7th degree escheated to the State. According to the finding of this Court when the succession opened on the death of Mst. Bhagwani the Plaintiff''s according to the prevailing law of the erstwhile Patiala State were not entitled to succeed to the estate of Sunder Singh. This finding has not been challenged before us by the learned Counsel for the Appellants On this ground also the Plaintiffs'' suit who have failed to prove their collateral relationship with the last male holder, must fail.
For the reasons stated above I maintain the judgment and decree of the Courts below and dismiss this appeal with costs.
Teja Singh, C.J.
I agree.