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2005 DIGILAW 243 (JK)

Hassan Bhat v. Gh. Ahmad Khanday

2005-09-14

MANSOOR AHMAD MIR, S.N.JHA

body2005
1. This Letters Patent Appeal is directed against the judgment and decree passed by learned Single Bench of this Court in CIMA No.45/2000 titled as Hassan Bhat vs. Mst. Rahti on 10th June 2005. 2. It is necessary to give the flash back of the case, the womb of which has given birth to the present LPA. 3. One Habib Bhat, resident of Kounsar Mulla died in the year 1976 leaving behind Mst. Rahti and Hassan Bhat. Mst. Rahti, who shall be hereinafter referred to as plaintiff, was constrained to file a suit. The plaintiff claimed that she is the Khana-Nishin daughter of Habib Bhat and their family is governed by the custom under which Khana Nishin daughter inherits like a son. Accordingly, the plaintiff prayed that both, plaintiff and defendant are entitled to inherit the property left behind by Habib Bhat, their father, in equal shares. In alternative, she has pleaded that she is entitled to fall back on personal law and to get her share in terms of Muslim Personal Law. 4. The defendant has resisted the suit on the grounds that parties are governed by custom. The plaintiff is not Khana Nishin daughter but was married as Khana Beerun daughter. The Khana Beerun daughter is not entitled to inherit. The defendant filed amended written statement and also pleaded that entire property was gifted away to him by his father Habib Bhat. 5. It appears that on 14th August 1985, the following issues were 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 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? 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. 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 aid to have been instituted under law? OPD Issue No.8. Is the suit liable to be amended for not being properly valued? OPD Issue No.9. Is the plaintiff estopped and bared to plead a case which is contrary to the one pleaded by her before Dy. Commissioner is an appeal? OPD Issue No.10. Relief� 6. The learned Additional District Judge, Srinagar framed the following additional issue as issue No.11 in the case: - Addl. Issue No.11: Whether in the year 1993 deceased Habib Bhat had made 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� 7. The parties have lead evidence and after hearing the learned counsel for the parties, the learned Additional District Judge, Srinagar passed the judgment and decree dated 8th June 2000 and held 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 ˜Khana 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. 8. The appellant/defendant preferred appeal against the said judgment and decree. During the pendency of the appeal, the learned Single Bench of this Court directed the trial court to return finding on the additional issue No.11. The learned Additional District Judge, Srinagar decided the said issue in terms of order dated 15th October 2003. 9. During the pendency of the appeal, the plaintiff, Mst. During the pendency of the appeal, the learned Single Bench of this Court directed the trial court to return finding on the additional issue No.11. The learned Additional District Judge, Srinagar decided the said issue in terms of order dated 15th October 2003. 9. During the pendency of the appeal, the plaintiff, Mst. Rahti, died and her legal heirs were brought on record in terms of order dated 25th August 2004. 10. The learned Single Bench after hearing the learned counsel for the parties dismissed the appeal and upheld the judgment and decree passed by the trial court on 08.06.2000 and the finding returned in terms of order dated 15th October 2003. It is profitable to reproduce operative part of the judgment passed by First Appellate Court as under: 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. 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 their area 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 to interfere with the findings of the trials court on this issue.� 11. 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 to interfere with the findings of the trials court on this issue.� 11. Learned counsel for the appellant/defendant argued that the findings arrived at by the trial court and First Appellate Court are erroneous and illegal and also argued that the parties are governed by the Custom an a Khana Beerun Daughter is not entitled to inherit as per the Customary Law. The appellant (defendant) has not to prove the said custom because the plaintiff has made admission in the plaint that the parties are governed by the custom. 12. It is profitable to reproduce Section 4(d) of the Shri Pratap Jammu and Kashmir Laws Consolidation Act, 1977 Svt., which reads as under: - Section 4(d). In questions regarding succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, waqf, partitions, castes or any religious usage or institution, the rule of decision is and shall be- the Mohammedan Law in cases where the parties are Mohammedans and the Hindu Law in cases where the parties are Hindus, 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 and good conscience and has not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority; 13. While going through this provision of law, the Shariyat is applicable in the matter of succession and inheritance unless it is pleaded and proved that the parties are governed by the custom and that custom abrogate the personal law. 14. The plaintiff has pleaded that she is Khana Nishin Daughter and is entitled to inherit like a son. She has failed to prove the same. Accordingly, the said issue stands decided in favour of the appellant/defendant and against the respondent/plaintiff. 15. The custom that, Khana Nishin Daughter inherit like a son and, Khana Beerun Daughter do not inherit are two different customs and are to be pleaded and proved specifically. 16. The Custom is a matter of proof. She has failed to prove the same. Accordingly, the said issue stands decided in favour of the appellant/defendant and against the respondent/plaintiff. 15. The custom that, Khana Nishin Daughter inherit like a son and, Khana Beerun Daughter do not inherit are two different customs and are to be pleaded and proved specifically. 16. The Custom is a matter of proof. The custom cannot be established by presumptions or inference. It is to be proved by cogent evidence by establishing that the custom is reasonable, ancient and continuous. 17. This view is supported by a judgment of this court in case titled as Mumtaz Begum v. S. Amman Ullah Khan, reported in AIR 1973 J&K 28. It is profitable to reproduce paras-8 and 15 of the said judgment herein; - 8¦It is well settled that a custom must be ancient, invariable, certain and continuous. Another important aspect that has to be kept in mind is that while instances of custom may be of some evidentiary value yet it must be established that 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¦� 15.Finally in view of the very short period from which the succession in the family of the parties opened, it is difficult to come up the conclusion that a custom was acted upon for a long time so as to outweigh the personal law. In our opinion the practice of excluding daughters from inheritance had no doubt started with a few exceptions but it was yet in its infancy and it had not ripened into a custom when the present suit was filed by the plaintiff. The custom is not so ancient and invariable so as to have a force of law. Furthermore even the evidence led by the defendants shows that the daughters get cash equivalent of their share at the time of marriage which also is a circumstance militating against the existence of a custom. The custom is not so ancient and invariable so as to have a force of law. Furthermore even the evidence led by the defendants shows that the daughters get cash equivalent of their share at the time of marriage which also is a circumstance militating against the existence of a custom. In these circumstances therefore having regard to the uncertain, and ambiguous nature of the evidence given, by the defendants it is not possible for us to hold that custom has been proved by clear, cogent and positive evidence. We therefore find ourselves unable to agree with the conclusions arrived at by the learned Judge that the custom as set up by the defendants has been proved by sufficient evidence. In view of our findings that the custom has not been proved it follows that Issue No.11 must be decided in favour of the plaintiff and against the defendants. 18. This Court has also held in case Mst. Khatji v. Mst. Mukhti & Ors, reported in AIR 1963 J&K page 4 as under; - (6)¦We find ourselves in complete agreement with the observations made by Mr. Justice Nair. From a consideration of various authorities cited above, the position unmistakably, therefore, is as follows: - 1. That there is a well established custom in the valley under which a Khana Nishin daughter 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. 2. That there is no well established custom to the effect that if a daughter fails to establish her status as to 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. 3. That the answering to Q.No.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 circumstance whatsoever. Nor can the answering given by Mr. Dogra in his book be taken to have superseded the Personal Law completely in this respect. Nor can the answering given by Mr. Dogra in his book be taken to have superseded the Personal Law completely in this respect. Applying, therefore, the principles laid down by us, to the facts of the present case, we find that even if the plaintiff had failed to establish that she was a Khana Nishin daughter of her father Ramzan Khandey she can still fall back upon her rights as a daughter simpliciter under the Mohammadan Law and is entitled to 1/6th of the share in the property in question as a residuary under her personal law.� 19. This High Court in case Ahad Mir v. Akram Mir & Ors., reported in 1982 SLJ 74 has held as under: - 5. When we are dealing with a case involving custom, the custom must be specifically and clearly pleaded and proved. In the valley there are two important customs which prevail in some of the families. First that if a daughter is taken as a Khana Nishin daughter she inherits not only the share of daughter simpliciter but the share of a son. In same families there is a custom that a daughter is excluded from inheritance completely, unless she is adopted as a Khana Nishin daughter. These two custom are absolutely separate in character and should not be confused as being part of the same custom. The plaintiff had pleaded the first custom and impliedly referred to the other. The defendant in her written statement did not accept the second custom impliedly pleaded by the plaintiffs. Although the accepted the first custom namely the question of Mst. Sarvi being a Khana Nashin daughter and averred that she was a Khana Nashin daughter of Hamza Mir. As, however, both the courts below have concurrently found as a fact that Mst. Sarvi was not taken as a Khana Nashin daughter by Hamza Mir and the recital in the will to this effect was wrong, it is not possible for me to disturb this finding of fact is second appeal. This however does not solve the issue. Even if Mst. Sarvi was not proved to be a Khana Nashin daughter she is still entitled to inherit as a daughter simpliciter in which case is entitled to get 1/5th shares in the property left by Hamza Mir except the lands which he had sold to Akram¦� 20. This however does not solve the issue. Even if Mst. Sarvi was not proved to be a Khana Nashin daughter she is still entitled to inherit as a daughter simpliciter in which case is entitled to get 1/5th shares in the property left by Hamza Mir except the lands which he had sold to Akram¦� 20. This Court in case Ghulam Hassan v. Mst. Sara reported in 1983 SLJ 185 has held as under: - 1¦The lower courts concurrently held that the plaintiff is not a Khana nashin daughter. They have further held that the defendants have not been able to establish the custom pleaded by them that a daughter to establish the custom pleaded by them that a daughter can inherit only as a Khana nashin daughter not at all. They have also held that in the absence of the proof of such custom the plaintiff was entitled to inherit the property as a daughter simpliciter. The decision is fully in conformity with the law laid down by this court in the case of Mst. Khatji vs. Mst. Mukhti: AIR 1963 J&K: 4 in which it has been held that there is no well established custom in the valley to the effect that if a daughter fails to establish her status as a Khana nashin daughter, she cannot succeed to the property even as a daughter simpliciter under Mohammadan Law. Such a custom is to be specifically pleaded and established by independent and cogent evidence by the party who seeks to rely on such custom. 21. Keeping the view the ratio laid down in the above said judgment, the party, who pleads that Khana Beerun Daughter cannot inherit has to specifically plead and prove by leading cogent evidence and by quoting the instances that Khana Beerun daughter is not entitled to inherit. 22. The argument of learned counsel for the appellant that the plaintiff, Mst. Rahti, has accepted in the pleadings that the parties are governed by the custom in the matter of inheritance is devoid of any force. The plaintiff has pleaded that she is Khana Nashin Daughter and is entitled to inherit like a son and in the alternative is entitled to inherit in terms of Muslim Personal Law. The plaintiff has nowhere pleaded that Khana Beerun Daughter is not entitled to inherit under Customary Law. The plaintiff has pleaded that she is Khana Nashin Daughter and is entitled to inherit like a son and in the alternative is entitled to inherit in terms of Muslim Personal Law. The plaintiff has nowhere pleaded that Khana Beerun Daughter is not entitled to inherit under Customary Law. The said fact is pleaded by the defendant and it was for the defendant to prove but defendant has failed to discharge the onus. 23. Keeping in view the above discussion, the findings returned by the trial court as well as by the learned Single Bench are legally correct, and needs not interference. 24. The learned counsel for the appellant also argued that the plaintiff has not claimed relief of possession thus the suit is hit by Section 42 of the Specific Relief Act. This argument is also devoid of any force for the following reasons. 25. The defendant has neither taken this plea in the written statement nor before the appellate court. However, the plaintiff and defendant are brother and sister thus, are co-shares. The possession of one co-share is deemed to be the possession of all co-sharers. It was for the defendant to plead and prove adverse possession and ouster. 26. The Apex Court in case Darshan Singh v. Gujjar Singh reported in AIR 2002 SC 606 has held as under: - 9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possess the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue record in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of other co-sharers was denied. 27. The learned counsel for the appellant has not advanced arguments in respect of issue No.11. However, the findings returned by the trial court and first appellate court are well reasoned. In view of the said facts, the defendant/appellant has failed to prove that Habib Bhat has gifted away the entire property to the appellant/defendant. 28. In the given circumstances, we are of the opinion that the trial court as well as the First Appellate Court has not committed any error. The impugned judgment is well reasoned and speaking one. 29. In view of the said facts, the defendant/appellant has failed to prove that Habib Bhat has gifted away the entire property to the appellant/defendant. 28. In the given circumstances, we are of the opinion that the trial court as well as the First Appellate Court has not committed any error. The impugned judgment is well reasoned and speaking one. 29. Viewed thus, the impugned judgment and decree is upheld and accordingly the Letters Patent Appeal is dismissed. Send down the record.