1. This appeal is directed against the judgment and decree passed by Addl. District Judge, Srinagar in a Civil Suit No. 42/1987 titled Rehati v. Hassan Bhat on 8.6.2000. 2. Mst. Rehati (hereinafter referred to as the plaintiff) and Hassan Bhat (hereinafter referred to as the defendant) are the issues of one Habib Bhat R/o village Kausamulla, Tehsil Chadoora, Budgam, who died in the year 1976 leaving behind landed property comprising khewat No. 13 & 14 Min measuring 16 kanals & 16 marlas and 44 kanals & 18 marlas respectively at village Kausamulla, Chadoora. On Hassan Bhats™ death, Mst. Rehati could not get her share in the said landed property from her brother Hassan Bhat due to which she had to institute a civil suit for declaration and injunction before this Court on 18th January 1984. 3. Mst. Rehati™s claimed that she was the ˜khana nishin™ daughter of Habib Bhat, and pleaded that their family was governed by the custom under which a ˜khana nishin™ daughter inherits like a son, so both she and Hassan Bhat, were entitled to inherit the landed property left by Habib Bhat, in equal shares. In alternative, the plaintiff prayed that if she is not able to prove here status as a khana nishin daughter, she was entitled to fall back on the Personal Law and get her ˜shariyat share™ in the property. The plaintiffs™ grievance was that the Naib Tehsildar of the area had without any competence mutated the property in favour of the defendant on 9th March 1998 but, according to her, such mutation did not affect her title over the land. She, therefore, prayed for a decree of declaration, declaring her entitled to the half share in the property left by Habib Bhat or in alternative 1/3rd thereof under the Personal Law. The plaintiff further prayed that after determining the respective shares of the property, Revenue Officer concerned be directed to partition the land by meets and bounds. She also prayed for a decree of injunction restraining the defendant from alienating the land to any stranger. 4. The suit was contested by the defendant on various grounds. The defendant admitted that the parties were governed by the custom but pleaded that the plaintiff was not a khana-nishin daughter but was married as khana-beeroon daughter to one Salman Khanday of village Panzipora about 50 years back. 4. The suit was contested by the defendant on various grounds. The defendant admitted that the parties were governed by the custom but pleaded that the plaintiff was not a khana-nishin daughter but was married as khana-beeroon daughter to one Salman Khanday of village Panzipora about 50 years back. He further stated that the parties were governed by a custom under which daughters married outside their parental home do not get any share from the property of their parents, as only those daughters who are married as khana nishin are given the son™s share in the property. 5. The defendant filed his amended written statement on 26th July 1986, in which he reiterated the stand taken by him earlier and further submitted that Habib Bhat has given the whole property (movable as well as immovable) to him by way of a verbal Hibba in the year, 1973. He (the father of the defendant) made an offer in this regard to the defendant which was accepted by him and he took over the possession of the movable and immovable property belonging to Habib Bhat, as such, he has become full-fledged owner of the property. 6. This Court on 14th August 1985 framed as many as 10 issues in the case, which are as under: - Issue No.1: Are the parties governed by custom in the matter of inheritance and can a daughter be made a ˜khana nashin™ under the said custom and is she entitled to inherit her father™s property like a son? OPP Issue No.2: On proof of issue No.1 is the plaintiff Dakhtar khana Nashin of her father and is she entitled to inherit her father™s property under custom like a son? OPP Issue No.3: Is the plaintiff in possession of her share of the property left by her father? OPP Issue No.4: Are the parties governed by a custom whereby a daughter married outside her father™s house ˜Beroon Khana Dukhtar™ excluded from inheriting her father™s property? OPD Issue No.5: On proof of Issue No.4 is the plaintiff under custom excluded from inheriting her father as a daughter? OPD Issue No.6: Is the suit bad for non-joinder of the heirs of Fazi daughter of Habib Bhat? OPD Issue No.7: Is the plaint not signed by the plaintiff, and cannot be said to have been instituted under law? OPD Issue No.5: On proof of Issue No.4 is the plaintiff under custom excluded from inheriting her father as a daughter? OPD Issue No.6: Is the suit bad for non-joinder of the heirs of Fazi daughter of Habib Bhat? OPD Issue No.7: Is the plaint not signed by the plaintiff, and cannot be said to have been instituted under law? OPD Issue No.8: Is the suit liable to be amended for not being property valued? OPD Issue No.9: Is the plaintiff estopped and barred to plead a case which is contrary to the one pleaded by her before Dy. Commissioner in an appeal? OPD Issue No.10: Relief.� 7. During the pendency of the suit, the case was transferred by this Court to the court of District Judge, Budgam. It appears that District Judge, Budgam again framed issues in the case on 17th February 1989. Latter the case was transferred to the court of Addl. District Judge, Srinagar. The court, by means of order dated 14th December 1996, observed that the court of District Judge, Budgam, had committed an accidental mistake by framing issues second time. He, therefore, by invoking powers under Section 152 CPC, rectified the mistake and ordered deletion of issues framed on 17th February 1989. The learned Court, however, found that since the defendant had filed an amended written statement in which he had raised the plea of oral gift, issue relating to this fact had not been framed. He , therefore, framed an additional issue No.11, which is as under: - Addl. Issue No.11: Whether in year 1993 deceased Habib Bhat had made oral Hibba in favour of the defendant regarding his entire estate including the suit land which was accepted by the latter and possession was delivered to him as its full-fledged owner? OPD� 8. Plaintiff, in order to establish her case, examined herself as witnesses besides producing Ali Dar, Wali Khan, Assad Bhat, Abdul Rehman Dar and Ali Mohammad Magray in support of her case. The defendant has not been examined but he has produced Mohd. Ismail Mir, Mohd. Ramzan Magray, Gh. Mohd. Wani, Gh. Mohd Dar, Ab. Gani Dar, Ab. Rehman Khanday and Mohd. Ismail Khanday to establish his case. 9. On conclusion of the trial the trial court decreed the suit holding that the plaintiff was entitled to 1/3rd share in Habib Bhat™s estate. Ismail Mir, Mohd. Ramzan Magray, Gh. Mohd. Wani, Gh. Mohd Dar, Ab. Gani Dar, Ab. Rehman Khanday and Mohd. Ismail Khanday to establish his case. 9. On conclusion of the trial the trial court decreed the suit holding that the plaintiff was entitled to 1/3rd share in Habib Bhat™s estate. The Court however did not return any finding on the additional issue framed in the case. On appeal, this Court directed the trial court to return a finding on the said issue too. The Court directed the trial court to give full opportunity to the parties to enable them to prove their respective claims by leading evidence, if they so choose, and return the finding preferably within a period of two months. 10. The trial court on receipt of the file provided opportunity to the parties to lead evidence on the additional issue. This time the defendant appeared as his own witness and examined Ramzan Wani, Ghulla Khan, Shaban Dar, Gh. Mohidin Khanday, Rehman Dar and Gh. Mohd. Sheikh as his witness while as the plaintiff in rebuttal examined, Ab. Ahad Khanday, Ali Mohd. Hajam and Gh. Nabi Khanday. The Court on consideration of the matter returned the finding on 15th October 2003 by means of which he found that making of oral gift in favour of the defendant, has not been established. The Court, therefore, decided the issue against the defendant. 11. Learned Addl. District Judge, Srinagar, forwarded the record to this Court, where the defendant filed his objections to the judgment passed by the trial court on 15th October 2003. During the pendency of the appeal, the plaintiff died, so all her legal representatives were brought on record by means of this Court order dated 25th August 2004. 12. The defendant has challenged the findings of the trial court by means of which the Court has decreed the suit of the plaintiff. He through the objections, challenged the findings of the trial court on the additional issue also, which was directed by the trial court by means of its judgment dated 15th October 2003. According to the defendant, the trial court has not properly appreciated the issue arising in the case at all. According to him the evidence led by the parties has not been appreciated in its proper perspective. According to the defendant, the trial court has not properly appreciated the issue arising in the case at all. According to him the evidence led by the parties has not been appreciated in its proper perspective. The suit has been decided in favour of the plaintiff despite the fact that she failed to prove the custom she had pleaded. There is no dispute, however, on the fact that the family follows custom under which a Khana Nishin daughter inherits like a son the contest is only in respect of the right of the plaintiff to inherit under custom. The objections raised by the defendant, are two fold; 13. Firstly, accordingly to the defendant, the plaintiff has herself pleaded custom under which only a khana-nashin daughter was entitled to inherit but has failed to prove her status as khana nishin daughter, as such, she was not entitled to any share out of the property left by Habib Bhat under the Personal Law. According to the defendant, since the trial court has returned a finding that the plaintiff was not a khana-nishin daughter of Habib Bhat and that this finding has not been challenged by the plaintiff, she was not entitled to any share out of the property left by Habib Bhat, as under the custom being followed by the parties, the daughter inherits only when she is made khana-nashin Dukhtar otherwise not. 14. Secondly, the defendant alleges that Habib Bhat had in the year 1973 gifted away his whole property to the defendant, as such at the time Habib Bhat died he did not left behind any estate which the plaintiff could have claimed under the custom or under Personal Law. 15. Before proceeding further to appreciate the respective claims of the parties and to adjudicate upon it, we may have a look on the findings arrived at by the trial court on the issues framed in the case. Issue No.1: Are the parties governed by custom in the matter of inheritance and can a daughter be made a ˜khana nashin™ under the said custom and is she entitled to inherit her fathers™ property like a son? OPP� This issue has been decided by the court against the plaintiff and in favour of the defendant. Issue No.1: Are the parties governed by custom in the matter of inheritance and can a daughter be made a ˜khana nashin™ under the said custom and is she entitled to inherit her fathers™ property like a son? OPP� This issue has been decided by the court against the plaintiff and in favour of the defendant. The court observed as under: - It is clear from the discussion made hereinabove, that the plaintiff has admitted that she has failed to prove the custom of ˜Dakhtar Khana Nashin™ and the plaintiff has admitted that they are not governed by custom but by Personal Law in case of inheritance. This issue is, as such, decided against the plaintiff and in favour of the defendant as the plaintiff has failed to prove that the parties are governed by custom in case of inheritance.� 16. Issue No.2: On proof of issue No.1 is the plaintiff Dakhtar khana Nashin of her father and is she entitled to inherit her father™s property under custom like a son? OPP� This issue has also been decided in favour of the defendant and against the plaintiff. The court observed as under: - In view of the finding returned regarding issue No.1, the issue No.2 is also decided in favour of the defendant and against the plaintiff as the plaintiff has failed to be ˜Dakhtar Khana Nashin™ of her father and as such, she is not entitled to inherit her father™s property like a son.� 17. Issue No.3: Is the plaintiff in possession of her share of the property left by her father? OPP� This issue has also been decided in favour of the defendant and against the plaintiff. The court observed as under: - The plaintiff has produced evidence in support of the issue. Some of the witnesses have stated that she is in possession of her share, but by and large the plaintiff has not been able to prove that she is in possession of her share from her father™s property. The property left behind by Habib Bhat as per evidence on record seems to be in possession of the defendant. The plaintiff has failed to prove this issue, and issue is accordingly decided against the plaintiff and in favour of the defendant.� 18. The property left behind by Habib Bhat as per evidence on record seems to be in possession of the defendant. The plaintiff has failed to prove this issue, and issue is accordingly decided against the plaintiff and in favour of the defendant.� 18. Issue No.4: Are the parties governed by a custom whereby a daughter married outside her father™s house ˜Beroon Khana Dukhtar™ excluded from inheriting her father™s property? OPD This issue has been decided in favour of the plaintiff and against the defendant. The court observed as under: - The custom by virtue of which a daughter married outside her father™s house is excluded from inheriting her father has been pleaded by the defendant, some evidence has been brought by the defendant in this connection. However, the defendant has not proved that this custom is an ancient custom prevalent in there area or family and has been consistently being followed by inhabitants of that area. A custom as per the Provisions of Sec.4-1 (d) of the Sri Pratap J&K Laws Consolidation Act which alters, abolishes or modifies the law applicable to the parties must not be contrary to justice, equity and good conscience. In the present case, the parties are admittedly Muslim by faith and anything which is in derogation of Quranic injunctions cannot be said to be based on justice, equity and good conscience as far as the parties to this suit are concerned. As per Muslim Law a daughter Muslim by faith is excluded from her share by any custom that custom will not be said to be based on justice, equity and good conscience. Moreover a custom should not be only ancient it must be consistent in the area in which it is pleased to be existing. In the present case the defendant has failed to prove that the custom of excluding the ˜Berum Khana™ daughter from inheriting her father is ancient and consistent and also that is not in contravention of justice equity and good conscience. The issue is accordingly decided against the defendant and in favour to the plaintiff.� 19. Issue No.5: On proof of Issue No.4 is the plaintiff under custom excluded from inheriting her father as a daughter? OPD� This issue has also been decided in favour of the plaintiff and against the defendant. The issue is accordingly decided against the defendant and in favour to the plaintiff.� 19. Issue No.5: On proof of Issue No.4 is the plaintiff under custom excluded from inheriting her father as a daughter? OPD� This issue has also been decided in favour of the plaintiff and against the defendant. The court observed as under: - In view of the finding returned regarding the issue No.4 the plaintiff is not excluded from inheriting her father. She has claimed a share from her father™s property and she is entitled to that share as per the Personal Law applicable to the parties. The issue is accordingly decided in favour of the plaintiff and against the defendant.� 20. Issue No.6: Is the suit bad for non-joinder of the heirs of Fazi daughter of Habib Bhat? OPD� This issue has also been decided in favour of the plaintiff and against the defendant. The court observed as under: - During the arguments the ld. Counsel for the plaintiff contended that two daughters of Habib Bhat including Mst. Fazi died during the life-time of said Habib Bhat. It is mater of common knowledge that in case of inherit the father of their mother or father i.e. they are excluded to inherit their grand father. This contention of the plaintiff™s counsel has not been rebutted by the otherside. So the question of non-joinder of the heirs of Mst. Fazi does not arise at all, because the said Mst. Fazi has died during the lifetime of her father. The issue is accordingly decided in favour of the plaintiff and against the defendant.� 21. Issue No.7: Is the plaint not signed by the plaintiff, and cannot be said to have been instituted under law? OPD� This issue has also been decided in favour of the plaintiff and against the defendant. The court observed as under: - As already mentioned hereinabove the finding regarding this issue has been given by the then Presiding Officer of this court vide his order dt. 5.4.97 and the Id. Presiding Officer has held that the plaint is bearing the thumb impression of the plaintiff and as such, it cannot be held that the plaint is not signed by her and the Id. Presiding Officer has accordingly held that the plaint is signed by the plaintiff and has decided the issue against the defendant and in favour of the plaintiff.� 22. Presiding Officer has accordingly held that the plaint is signed by the plaintiff and has decided the issue against the defendant and in favour of the plaintiff.� 22. Issue No.8: Is the suit liable to be amended for not being property valued? OPD� This issue has also been decided in favour of the plaintiff and against the defendant. The court observed as under: - The defendant has not pressed this issue and although the issue apparently seems to be legal in nature but a party who asserts something has to prove it. Merely asserting a thing dose not suffice. This issue not being pressed is decided against the defendants and in favour of the plaintiff.� 23. Issue No.9: Is that plaintiff estopped and barred to plead a case which is contrary to the one pleaded by her before Dy. Commissioner in an appeal? OPD.� This issue has also been decided in favour of the plaintiff and against the defendant. The court observed as under: - The defendant has failed to show as to how the plaintiff is estopped and barred from pleading a case which according to the defendant she has pleaded before the Deputy Commissioner in appeal. This issue has not also been pressed by the defendant. The doctrine of estopple will apply only when it is clearly shown that the matter had been in issue before a competent forum and has been adjudicated upon by that forum, and that too against the party against who the doctrine of estoppel is sought to be invoked. In view of the stand taken by the defendant in not pressing this issue, the issue is decided against the defendant and in favour of the plaintiff.� 24. Issue No.10: Relief.� Concluding the trial court has observed as under: From the issue-wise finding returned hereinabove it is clear that the plaintiff has established her case for inheriting her deceased father to the extent of 1/3rd of the property left behind by her father. This has been proved by the plaintiff on the basis of the Personal Law of inheritance. Plaintiff has failed to prove herself to be a ˜khaha nashin™ daughter. The plaintiff is in view of the issue-wise finding returned hereinabove entitled to inherit her father to the extent of 1/3rd of the property left behind by her father. This has been proved by the plaintiff on the basis of the Personal Law of inheritance. Plaintiff has failed to prove herself to be a ˜khaha nashin™ daughter. The plaintiff is in view of the issue-wise finding returned hereinabove entitled to inherit her father to the extent of 1/3rd of the property left behind by her father. It will not be out of place to mention here that the defendant has not chosen to appear as his own witness in the case, although under the provisions of CPC he should have appeared as his own witness before examining the other witnesses produced by him. And as such, an adverse inference can be drawn against the defendant. The plaintiff is in view of the discussion and issue-wise finding returned hereinabove declared entitled to inherit her father to the extent of 1/3rd of the property left behind by her father and a decree of declaration is accordingly passed in favour of the plaintiff and against the defendant. And as the plaintiff has sought the partition of the property left behind by the deceased father of the parties, Tehsildar Chadoora is appointed as Commissioner in the matter with the direction that he shall partition the suit property by meets and bounds in accordance with the preliminary decree passed in this respect as a decree of declaration passed in favour of the plaintiff, wherein, she has been held entitled to inherit 1/3rd of the property left behind by her father. The commissioner after affecting the partition in meets and bounds shall furnish a report of the Commissioner. A decree is passed to the effect that the defendant is also restrained from alienating the suit property to any stranger till the actual partition is given her share to the extent of 1/3rd of the suit property. The suit is accordingly decreed alongwith costs. A decree sheet be accordingly prepared. The file shall now come up for the report of the Commissioner on 28.7.2000.� 25. Addl. Issue No.11: Whether in year 1993 deceased Habib Bhat had made oral Hibba in favour of the defendant regarding his entire estate including the suit land which was accepted by the latter and possession was delivered to him as its full-fledged owner? OPD� This issue has also been decided in favour of the plaintiff and against the defendant. Addl. Issue No.11: Whether in year 1993 deceased Habib Bhat had made oral Hibba in favour of the defendant regarding his entire estate including the suit land which was accepted by the latter and possession was delivered to him as its full-fledged owner? OPD� This issue has also been decided in favour of the plaintiff and against the defendant. The court observed as under: - It is not to be over-looked, that to accept the position of making of gift in favour of one heir is to result in depriving other heir from the legacy left behind by the father. Legally there is no bar for the owner to gift-away his entire property verbally or in writing but same has to be proved and for ascertaining the actual proof one has to be more cautions so that one heir may not lose the right of property on the basis of any manipulated story. For the reasons and discussions made herein above, in my considered opinion making of oral gift in favour of defendant is not proved so defendant has failed in proving this issue. This issue is, as such, decided against the defendant.� 26. Heard. I have considered the matter and have gone through the trial court™s record. I have also perused the evidence produced by the parties, before the trial court. 27. In order to see as to whether the plaintiff was entitled to any property, as claimed by her, we shall first have to see whether Habib Bhat - father of the parties, had left any landed property. Habib Bhat was the owner of agriculture land mentioned in the plaint is admitted by the parties. However, in view of the plea of oral gift raised by the defendant, it becomes a relevant issue as to whether there was any property in ownership and possession of Habib Bhat at the time he expired. According to the defendant, Habib Bhat in the year 1973 gifted away all his movable and immovable property in his favour. The property was gifted away be means of an oral gift, which was duly accepted by him and in pursuance of such acceptance he took over the possession of the property also. An additional issue has been framed on it, - the trial court has found that on the evidence led by the parties, the defendant has not succeeded in establishing this issue. An additional issue has been framed on it, - the trial court has found that on the evidence led by the parties, the defendant has not succeeded in establishing this issue. The defendant has appeared as his own witness besides examining Ramzan Wani, Gulla Khan, Shaban Dar, Gh. Mohidin Khanday, Rehman Dar and Gh. Mohd. Sheikh, on this issue. The defendant has stated that his father gifted away the entire property-movable and immovable, in his favour. According to him the plaintiff was married twice, on which lot of expenditure was incurred by his father, therefore, the entire property was given to him. Though his witnesses Ramzan Wani, Gulla Khan, Shaban Dar, Gh. Mohidin Khanday, Rehman Dar and Gh. Mohd. Sheikh also state that Habib Bhat gifted away whatever he had, in favour of the defendant but as has been rightly observed and held by the trial court, the plea of oral gift raised by the defendant appears to be a manipulation. The declaration and its acceptance, which are pre-requisites of a valid gift, are not established. The trial court has pointed out to some of the glaring contradictions in the statements of the defendant™s witnesses and has come to the conclusion that these witnesses have given their own versions regarding the actual words spoken by the deceased Habib Bhat. In this behalf, the trial court has observed as under: - Carefully shifted and scanned evidence as produced in support of this issue, what emerges there from is that, making of oral gift by Habib Bhat is nothing but a manipulation. Credibility of the witnesses is total shaken, their approach has been partisan. Their testimony vis-à-vis actual words spoken by alleged donor and alleged donee regarding alleged declaration and acceptance of the gift are contradictory. Regarding declaration an acceptance works said to have been used are given differently by the witnesses.� 28. If the family was following a custom under which the plaintiff was not entitled to get any share in the property, what was the need for Habib Bhat to gift away the property through oral gift is not clear. Otherwise also the defendant would have inherited the property under the alleged custom. This aspect is not explained at all by the defendant. Otherwise also the defendant would have inherited the property under the alleged custom. This aspect is not explained at all by the defendant. Another important aspect, which contradicts the stand of the defendant on this count, is that defendant has himself admitted that Habib Bhat had not divested himself from the property, as he was getting the entire income from the defendant. This admission itself shows that there was no transfer of title or possession by Habib Bhat to the defendant. The trial court has in this behalf observed as under: - Further-more, it may not be out of place to mention that it is clear that Habib Bhat had not divested himself from the property as according to Hassan Bhat (defendant) even after 1973 entire income was given to the father because of being owner and head of the family. According to DW-2 Ramzan Wani, Habib Bhat used to go to the land even after making of gift, same position is also supported by Ali Mohd. Hajam witness of the plaintiff who used to make share of Habib Bhat as well as Ahad Khanday, who said Habib Bhat was in possession as owner.� Oral gift of a property is allowed under Muslim Law, as writing is not essential to the validity of a gift either of movable or of immovable property. Right from the year 1880 when the Privy Council upheld a verbal gift in Kamar-un-Nissa Bibi v. Hussaini Bibi (1880) 3 Au.226, a verbal gift by the Muslims is being recognized by the courts notwithstanding the provisions of the Transfer of Property Act. In Ghulam Ahmed Sofi v. Mohd. Sidiq, AIR 1974 J&K 59, Full Bench of this Court held that Sections 123 and 129 of the Transfer of Property Act do not supersede the Muslim Law, on matters relating to making of oral gifts and it is not essential that there should be a registered instrument in case of gifts under the Muslim Law. Though oral gifts in such cases are permissible, the parties must lead such evidence before the court as would clearly establish that the gift has been proved satisfactorily. Mere casual assertions or stray circumstances may not be enough. Though oral gifts in such cases are permissible, the parties must lead such evidence before the court as would clearly establish that the gift has been proved satisfactorily. Mere casual assertions or stray circumstances may not be enough. Muslim Law permits an oral gift, but to make a gift valid there must be a declaration of gift by the donor, acceptance of the gift by or on behalf of the donee and delivery of possession of the subject of the gift by the donor to the donee. Where the donor, even after the declaration and acceptance of gift, continues to have control over the subject matter of the gift and receives its income, as in the present case, the gift is not complete, and in such case, after the death of the donor, the property will fall back into the inheritance of the donor. 29. Under these circumstances, I find that the trial court has properly appreciated the evidence on record on this issue and has come to a right conclusion that there was no oral gift by Habib Bhat in favour of the defendant and that the plea of verbal gift was nothing but a manipulation on the part of the defendant. I therefore, do not find any sufficient ground to interfere with the findings of the trial court on this issue. 30. The second aspect of the case which is the main issue in the case is as to whether a daughter, who claims to be a khana-nishin daughter, can fall back on the Personal Law and get the share under the Muslim Law of Inheritance, if she fails to establish her status khana-nishin daughter. The issue is not res-integra as this court as well as the Board of Judicial Advisors has in catena of authorities observed and, it is a settled law now that a daughter who claims son™s share under custom on the plea of khana-nishin daughter if fails to establish her status, can fall back on the Personal Law and can get the daughters share fixed by the Personal Law. 31. In the past there was difference of opinion on the issue but now it is well settled judicial view that even if a daughter fails to prove her status as a khana-nishin daughter, she is still entitled to succeed as a daughter simpliciter in absence of a special family custom to the contrary. 31. In the past there was difference of opinion on the issue but now it is well settled judicial view that even if a daughter fails to prove her status as a khana-nishin daughter, she is still entitled to succeed as a daughter simpliciter in absence of a special family custom to the contrary. In Zebi v. Reshi Mir, 4 J&K LR 254 Division Bench of this Court held, It appears that some confusion exists as to whether a person who sets up a custom relating to succession can inherit under the Mohammadan Law. It is only when a custom is set up by a plaintiff which is not admitted by defendant and the plaintiff fails to prove the existence of the customs that the plaintiff would be entitled to succeed under the Mohammadan Law�. In another part of the judgment the learned Judges observed: - It was further contended on behalf of the appellant that even if she were not a khana nishin daughter she would be entitled to a share under the Mohammadan Law. It was common case of the parties that succession was governed by custom under which a khana Nishin daughter succeeded to the entire property. Succession could be governed either by a custom or by Personal Law because there cannot be two different and inconsistent rules of succession or inheritance. It was admitted by the parties that a khana nishin daughter would succeed to the entire property. The plaintiff is not a Khana nishin daughter and according to the custom stated above she would not inherit the property at all�. 32. The case went to appeal to the Board of Judicial Advisors where it was held: (Reported as Lassi v. Resha Mir 8 J&K LR 117): - The crucial point in this case, after the plaintiff™s claim based on her position as Dukhtar Khana Nishin is negatived, is whether she is never-the-less entitled to succeed as a daughter simpliciter. This was the subject of issue 2 and 5 framed by the District Judge. None of the courts below has approached this question from a correct standpoint. They seem to have been of the opinion that the plaintiff could succeed as a Dukhtar khana nishin or not at all. This by no means is correct. This was the subject of issue 2 and 5 framed by the District Judge. None of the courts below has approached this question from a correct standpoint. They seem to have been of the opinion that the plaintiff could succeed as a Dukhtar khana nishin or not at all. This by no means is correct. If she failed to establish a custom under which she claimed as a Dukhtar khana nishin nominated by her mother, she is entitled to fall back on Mohammadan Law and claim a share to which that Law entitles her unless of course it is proved that by custom she is excluded by some other heir and that Mohammadan Law has been suppressed by such custom to that extent�. 33. According to this view when the daughter alleges the custom of khana-nishin daughter and the same is not established, she can fall upon her Personal Law. In Rasool Lone v. Mst. Rahmati 4 J&K LR 257 the principle laid down in Mst. Zebi™s case (Supra) was followed and it was held that: - In this case the pleadings on behalf of the plaintiffs are inconsistent. They claim as khana nashin daughters and also plead that if they are not proved to be khana nashin they must be given a share under the Mohammadan Law. By pleading that they were khana nashin daughters they must be presumed to admit that a custom with regard to Khana nishin daughters inheriting property prevails in the family. If such a custom prevails than there is no question of their getting anything if they are not proved to be khana nashin daughters. The defendant also admitted by implication that the customs stated above obtain among the parties but contended that the plaintiffs were not khana nashin daughters. There is unanimous finding of both the courts below that the plaintiffs are not khana nashin daughters and therefore they cannot claim any inheritance under that custom. In the event of the custom prevailing there is no question of the plaintiffs succeeding to any share under the Mohammedan Law in the absence of proof that they are khana nashin daughters�. 34. In Akbar Rather v. Mst. Azizi 4 J&K LR 264, similar observations were made and Mst. Zebi™s case was followed. In the event of the custom prevailing there is no question of the plaintiffs succeeding to any share under the Mohammedan Law in the absence of proof that they are khana nashin daughters�. 34. In Akbar Rather v. Mst. Azizi 4 J&K LR 264, similar observations were made and Mst. Zebi™s case was followed. In Rahim v. Ahmad Lone (decided by a Division Bench of this Court on 2nd Sawan 1999 Bk.) the claim of the plaintiff was allowed under the Mohammadan Law even when she had failed to establish her claim under the custom. The plaintiff, in this case, pleaded custom and based her claim on such custom alleging that she was khana nashin daughter and thus entitled to the whole estate of her father. She, however, pleaded that if she fails to prove her claim under the custom, she should be given her share under ˜Mohammadan Law™. The Court held: - It has been found concurrently by both lower courts as stated above, that the plaintiff was not a khana nashin daughter of Shaban. This finding is conclusive. She, therefore, does not get the property as khana nashin daughter. She has as stated above also claimed property under the Mohammadan Law. It is admitted by the parties that she is the daughter of Shaban Lone. It is further admitted that Shaban did not have any son. He left the plaintiff and his widow. On his death the plaintiff succeeded to half of the property in dispute and the widow to 1/4th. The widow is dead. The plaintiff™s share is the property in dispute is, therefore 3/4th. It is, therefore, ordered that the appeal be partly allowed, that the decree of both lower courts be set aside and the plaintiffs suit for a declaration that she is the owner of 3/4th sharer in the property in dispute be decreed¦� 35. In Mst. Safia v. Mst. Fatima AIR 1953 J&K 39, a similar view was taken and it was held that, if a daughter failed to establish a custom under which she claimed as a Dukhtar khana nishin nominated by her mother she is entitled to fall back upon Mohammadan Law and claim a share to which that law entitled her unless of course it is proved that by custom she is excluded by some other heir and the Mohammadan Law has been superseded by such custom to that extent. 36. In Khatji v. Mukhti AIR 1963 J&K 4 it was observed that, there is a well established custom in the valley under which a khana nishin daughter who resides with her husband in her fathers™ house inherits the property of her father just like a son. She gets the same share as a son under the Mohammadan Law and excludes other sisters, if any. 37. The Court said that there is no well-established custom to the effect that if a daughter fails to establish her status as a Khana nishin daughter she cannot succeed to the property even as a daughter simpliciter. Under the Mohammadan Law such a custom has to be specifically pleaded and established by independent and cogent evidence by the party who seeks to rely on such a custom. It was further held that the answer to Question 58 of Sant Ram Dogra™s book does not prove beyond judicial proof a well established custom that a daughter can inherit only and only if she is a Khana nishin daughter and not otherwise under any circumstances whatsoever, nor cant the answer given by the Dogra in his book be taken to have superseded the Personal Law completely in this respect. Consequently even if the daughter had failed to establish that she was a khana nishin daughter to her father she can still fall upon her rights as a daughter simpliciter under the Mohammadan Law and it is entitled to 1/6th of the share in the property as a residuary under her Personal Law. In Fateh Shah v. Bega AIR 1964 J&K 18 the observations made in Khatji v. Mukhti (Supra) were followed and it was held that even if a person failed to prove that she is a khana-nishin daughter she is still entitled to succeed as a daughter simpliciter in absence of a special family custom to the contrary. 38. The plaintiff in her suit claimed that she was khana-nishin daughter of deceased Habib Bhat, as such, was entitled to inherit property to Habib Bhat alongwith defendant in equal shares. She has, however, failed to establish her status as such. The trial court has observed that the plaintiff failed to establish her status as khana-nishin daughter. The trial court has based its finding on the evidence led by the parties. She has, however, failed to establish her status as such. The trial court has observed that the plaintiff failed to establish her status as khana-nishin daughter. The trial court has based its finding on the evidence led by the parties. I have gone through the evidence and also the reasoning given by the trial court in arriving at such a conclusion. I find that there is no sufficient evidence on file which could establish the status of the plaintiff as khana-nishin daughter of Habib Bhat and the conclusions arrived at by the trial court on the basis of this evidence appears to be just and proper. The reasoning given by the trial court in holding this view is convincing and there is nothing on record to take a contrary view in this behalf. I need not to reproduce the evidence here on this issue, as this part of the finding of the learned trial court has not been challenged by the plaintiff at all. 39. The plaintiff is satisfied with what she has got from the trial court under the Personal Law but the defendant is aggrieved of the finding of the trial court is granting the daughters™ share to the plaintiff under Personal Law. Learned counsel appearing for the defendant has vehemently raised the point and argued that since it is an admitted case of custom and since the plaintiff had specifically pleaded a custom of Khana-nishin duktar, which she failed to establish, she could not inherit any property under the Personal Law. Though the issue as indicated above, is settled now and we need not to go further into to this issue but what the learned counsel would argue to make out a case is that once a lady puts forth her claim on the basis of custom that she can inherit like a son, being a dukhtar Khana-nishin, it can be inferred from the plea that a girl, if not made a dukhtar-I-khana-nishin, cannot inherit the property at all. In other words a daughter, according to the learned counsel, who is not khana-nishin daughter, cannot inherit the property at all, whether under the custom or under the Personal Law. Learned counsel in support of his submission relies on Mst. Khatji v. Mst. Mukti AIR 1963 J&K 4, Fata Shah v. Mst. Bega AIR 1964 J&K 18 and Gh. Hassan v. Mst. Saja AIR 1984 J&K 26. Learned counsel in support of his submission relies on Mst. Khatji v. Mst. Mukti AIR 1963 J&K 4, Fata Shah v. Mst. Bega AIR 1964 J&K 18 and Gh. Hassan v. Mst. Saja AIR 1984 J&K 26. In order to appreciate the issue raised by the learned counsel, we shall have to examine it in detail in the background of the customary law as applicable to the Muslims of the Valley. 40. Muslim law is being applied to the Muslims of the State by means of the Sri Pratap Jammu and Kashmir Laws Consolidation Act., 1977 Svt. Section 4(d) of the Act provides that, in questions regarding succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, waqfs, partitions, caste or religious usages or institution, the rule of decision is and shall be the Mohammadan Law where the parties are Mohammadan ˜except in so far as such Law has been by this or any other enactment, altered or abolished or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment declared to be void by any competent authority. 41. This Act was enacted in the year 1920 A.D. and was enforced for a period of two years in the first instance from 1st. Baisakh, 1978 (13th April, 1921). Its enforcement was extended from time to time and on 1st Baisakh, 1981 (13th April, 1924) it was ordered by State Council Resolution No: 1 dated 8th April, 1925 that it shall remain and continue in force without the limit of time. 42. After independence the Constitution of Jammu and Kashmir, 1956 has maintained the laws existing at the date of its introduction and thus it has saved the application of Laws Consolidation Act. 42. After independence the Constitution of Jammu and Kashmir, 1956 has maintained the laws existing at the date of its introduction and thus it has saved the application of Laws Consolidation Act. Section 102 of the State Constitution provides: - Subject to the provision of this Constitution and to the provisions of any law for the time being in force the jurisdiction of and the law administered in the High Court and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the settings of the court and of members thereof sitting alone or in Division courts, shall be the same as immediately before the commencement of this Constitution.� Similarly under Section 157 of the State Constitution, it was provided that: - ˜All the Laws in force in the State immediately before the commencement of this Constitution shall continue in force until altered or repealed or amended by competent authority.™ 43. The Laws Consolidation Act empowers the courts to apply Muslim Law where the parties to a case are Muslims and the case involves any of the matters mentioned in the Section. Section 4(d) of the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977 Svt. provides that the law of Sharia, will apply to the Muslims only in the following matters: - a. marriage, divorce, dower, adoption, guardianship, minority, bastardy and female relation, b. succession, inheritance and special property of females and partitions, c. gifts, waqfs, wills, legacies, and d. caste or religious usages. 44. There are, however, two exceptions to the rule laid down by Section 4(d) of the Laws Consolidation Act regarding the application of Personal Law i.e. the courts cannot apply such law where - a. any enactment has altered or abolished the Personal Law; or b. any valid custom has modified the Personal Law. Right from the year 1937 the Board of Judicial Advisors and this High Court has laid down that the Personal Law is the governing rule and when a party alleges and proves a custom, then the custom is the governing rule but everything beyond the proved custom must be governed by the Personal Law. 45. Right from the year 1937 the Board of Judicial Advisors and this High Court has laid down that the Personal Law is the governing rule and when a party alleges and proves a custom, then the custom is the governing rule but everything beyond the proved custom must be governed by the Personal Law. 45. In Syed Hakim Ali Shah v. Nawab Bibi 1937 P.L.R. J&K 61 it was observed by the Jammu and Kashmir High Court that: In the absence of any special custom to contrary the parties will be presumed to be governed by their Personal Law in the matters of succession. 46. In Mst. Sadroo v. Beli Ram, 2 J&K LR 311 (D.B.) it was held that Section 4 of the Jammu and Kashmir Laws Consolidation Act specifically lays down that the presumption in matters of inheritance is in favour of the Personal Law that is to say the parties will be presumed to be governed by ˜Personal Law unless they prove that they are governed by custom and that custom abrogates their Personal Law. When a person pleads custom and basis his claim upon it, it is incumbent upon him to prove that custom by clear and reliable evidence. There is no presumption in favour of custom. It is not correct to say that even parties are agriculturists, they live in a village and the property is ˜agricultural land™, the primary presumption that parties are governed by their Personal Law is very much weakened. 47. In Akbar Rather v Azizi, 4 J&K LR 264 it was laid down by Wazir and Masud Hassan JJ that: It has been laid down quite clearly a number of times that ordinarily parties are governed by their Personal Law and that only exception are those in which one or the other party proves successfully that Personal Law is abrogated by such custom as are found to be prevailing in the valley.� 48. Again in Romella v. Bhagat Ram, 6 J&K LR 17 it was observed that in this State the authority is furnished by the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977 which shows that ordinary Hindu Law should prevail where the parties are Hindus, unless it is proved that it has been modified by custom applicable to the parties concerned. It is for the plaintiff to prove the custom specifically. 49. It is for the plaintiff to prove the custom specifically. 49. In Din Mohammad v. Karim Bibi 3 J&K LR 122 (Board), it was observed by the Board of Judicial Advisors that, it is of the utmost importance that a custom relied on by a party in modification of Personal Law to which prima facie every family is subject should be specifically pleaded. It is a well established rule of law that the Personal Law of the propositus is superseded only to the extent the custom is established by evidence and that a custom which is in derogation of the Personal Law should be specifically pleaded and the evidence adduced in support of it should be strictly construed, it is only where a custom is established to be ancient, uniform and unambiguous that the Personal Law can be superseded by it. 50. Again in Mirza Bahadur Ali v. Ch. Sundar Das, 4 J&K LR 144 (Board) it was held by the Board, that, if a person relies upon a family tribal or local custom in derogation of general law in support of his case, he must give full particulars of the custom in his pleadings and if judgments and decrees and documents exist in proof of a custom, these are best proof of the custom and the person relying on the custom should produce and exhibit them and oral evidence cannot be proper substitute of documents. 51. In Mumtaz Begum v. S. Amman Ullah Khan, A.I.R 1973 J&K 28, it was held by a Division Bench of this Court that: The burden to prove custom in derogation of Personal Law is on the party who alleges it. The practice which developed into a customary usage in derogation of the Personal Law of the parties must be proved to have been exercised not merely by virtue of an agreement between the parties, but as of right. The evidence must show that a claim was made by any of the heirs but such was the force of the usage and the custom that the claim was denied and the custom prevailed�. 52. In Khatji v. Abdul Razak Sofi AIR 1977 J&K 44 it was observed that the Muslims of this State can base their claim for the application of the Mohammadan, Law of inheritance only by virtue of a legislative enactment, namely Sri Partap Jammu and Kashmir Laws Consolidation Act. 52. In Khatji v. Abdul Razak Sofi AIR 1977 J&K 44 it was observed that the Muslims of this State can base their claim for the application of the Mohammadan, Law of inheritance only by virtue of a legislative enactment, namely Sri Partap Jammu and Kashmir Laws Consolidation Act. Under this enactment and Mohammadan Law is applicable to the Muslims of this State subject to the custom applicable to the parties modifying the principles of Mohammadan Law. 53. The position, which emerges from all these judicial pronouncements, may be summarized thus� a. The primary rule is that a party is governed by his Personal Law in matters mentioned in Section 4 of the Laws Consolidation Act. Thus when a case relating to inheritance etc. comes before a court, the court must presume that the parties are governed by the Personal Law. b. If a party alleges a custom, the party alleging such custom has to prove it and on such proof the custom and not the Personal Law will be the governing rule. c. The custom is to be pleaded specifically and very best possible evidence and that of a high order is needed to establish the existence of a custom in derogation of the Personal Law of the parties. d. If the party alleging the custom fails to prove the custom the Personal Law of the party will apply. e. There is no presumption in favour of the application of custom. 54. Once a custom is pleaded, it must be proved by satisfactory evidence. There is no presumption in favour of custom. On the other hand, as is specifically laid down in section 4 of the Jammu and Kashmir Laws Consolidation Act, the presumption in matters of inheritance etc. is in favour of the Personal Law, that is to say, the parties will be presumed to be governed the Personal Law unless they prove that they are governed by custom and that custom abrogates their Personal Law. 55. In Dewan Jewan Nath Madan v. Rasul Gadoo, 5 J&K LR 111 (116), Board of Judicial Advisers held that: The general principle is that the ordinary law regulates everything beyond custom. Not only each custom must be alleged, but separate incident of a custom may be proved to exist as customary law. Every separate departure from the ordinary law has to be supported by evidence of a binding custom. 56. Not only each custom must be alleged, but separate incident of a custom may be proved to exist as customary law. Every separate departure from the ordinary law has to be supported by evidence of a binding custom. 56. In Sawanmal and others v. Mst. Bikhu 7 J&K LR 108 (109), it was held that unlike the neighboring province of the Punjab, the presumption here is that the people of this place are governed by their Personal Law unless modified by the custom. And if a custom is set up in derogation of the Personal Law of the parties, the evidence must be very clear and must be equally supported by instances. 57. It lies upon the person asserting that he is ruled in regard to a particular matter by custom to prove that he is so governed and not by Personal Law, and further to prove what the particular custom is. 58. In Mumtaz Begum v. S. Amanullah Khan, AIR 1973 J&K 28 (31) it was held that where custom of exclusion of females from inheritance is pleaded the proof ought not to consist solely of the fact that they have been ignored but there should be positive instance™s proving that the woman demanded their share and were refused. The reason for this insistence is attributed to the fact that women are very much under the influence of their male relations. It is not an uncommon practice that sisters just do not want to claim their share from brothers either for love and affection or because they are married to distant places and find it most inconvenient to claim the property of their father. In a Privy Council case, (Abdul Hussain Khan v. Mst. Bibi AIR 1917 P.C. 181) their lordships fully endorsed the observations of Justice Hutchins in the case reported in (1885) ILR 8 Mad 464 which were as follows: It must be admitted that instances have been adduced in which the claims of daughters and sisters to a share have been ignored or they have been allotted maintenance though the case mentioned by the judge of a partition in the father™s lifetime are not inconsistent with Mohammedan Law. There are also cases in which married daughters have been treated as estranged from the family. There are also cases in which married daughters have been treated as estranged from the family. But the instance of this kind will be found to occur where there is no doubt that family is governed by pure Mohammedan Law. Indeed in many parts of the country it is unusual for Mohammedan ladies to insist on their unquestioned rights. They will often prefer being maintained by their brothers to taking separate share for themselves and when they are married the marriage expenses and presents are often, by express or implied agreement, taken as equivalent to the share which they could claim. Moreover, Mohammedan females are so much under the influence of their male relations that the mere partition of the property among the males without reference to them cannot for much.� 59. The evidence must show that the custom was exercised as a right and not merely by concession or agreement. The mere fact that daughters were excluded from inheritance without any dispute being raised or any claim being preferred is a strong circumstances which disproves the existence of a custom so as to out weight the written of law. 60. Thus a custom is a matter of proof and not of conclusions. A custom cannot be established by implications or inferences. It has to be proved as a fact by evidence, which must establish the reasonable ancient, continuous and definite character of the custom. It is well settled that custom cannot be established by analogy. In T. Saraswathi Ammal v. Jagadambal, 1953 SCR 939 the Apex Court held that: The correct approach to a case where a party seeks to prove a custom is the one pointed out by their Lordships of the Privy Council in Abdul Hussein Khan v. Soma Dero. It was there said that it is incumbent on a party setting up a custom to allege and prove the custom on which be relies and it is not any theory of custom or deductions from other custom which can be made a rule of decision but only any custom applicable the parties concerned that can be the rule of decision in a particular case is well settled that custom cannot be extended by analogy. It must established inductively, not deductively and it cannot be established by a priori methods. It must established inductively, not deductively and it cannot be established by a priori methods. Theory and custom are antitheses, custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another. A community living in one particular district may have evolved a particular custom but from that it does not follow that the community living in another district is necessarily following the same custom.� 61. When the existence of a specific custom is alleged by the plaintiff in the plaint and the fact is not denied by the defendant in his written statement, who pleads another custom it cannot be deduced from the pleadings of the plaintiff that the custom pleaded by the defendant applies to the plaintiff. 62. A party basing his claim on custom but failing to established it entitled to fall back upon his Personal Law and the court is bound decide his claim under the Personal Law. The irresistible conclusion, from this discussion, is that Muslim girl, who is made a khana-nishin daughter by her father, can inherit the property left by her father. She inherits like a son and if there are other brothers, she will inherit along with them in equal share. If such a girl fails to establish a custom even then she can fall back upon Personal Law and inherits her share under the Personal Law. A daughter, even if married outside her parental home, cannot be excluded and denied her share in the property left by her father in any circumstance. 63. Applying this principle to the facts and circumstances of the case. I find that the conclusions arrived at by the trial court in decreeing the suit of the plaintiff to the extent of 1/3rd of her share is correct and needs no interference at all. 64. On factual side too the defendant has got no case at all. He alleges that the plaintiff is a khana beerun daughter as such is not entitled to any share out of her fathers™ property as under the custom, being followed by their family, a khana beerun daughter does not inherit her fathers™ property at all. 64. On factual side too the defendant has got no case at all. He alleges that the plaintiff is a khana beerun daughter as such is not entitled to any share out of her fathers™ property as under the custom, being followed by their family, a khana beerun daughter does not inherit her fathers™ property at all. That the plaintiff was a ˜khana beerun daughter™ is established and is not now disputed by her but from the evidence on record, it is not satisfactorily proved, as has rightly been held by the trial court, that there exists a custom in the family as alleged by the defendant under which a khana beerun daughter is excluded from inheritance. On going through the evidence led by the parties, I find the trial court has arrived at a right conclusion that the defendant has not proved that this custom is an ancient custom prevalent in there are or family and has been consistently being followed by inhabitants of that area. The defendant and his witnesses have vaguely referred to the custom without giving any instance to establish that the custom is being followed from time immemorial as a rule. I, therefore, find no ground in interfere with the findings of the trial court on this issue. The result is that this appeal fails, which is accordingly dismissed. Order accordingly.