BALWANT Vs. MTBHULLAN

JUDGEMENT

(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 30 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.