JUDGMENT Mohinder Pal, J.:- This judgment will dispose of afore-mentioned two Regular Second Appeals as they are directed against the same judgment and decree dated February 11, 2004 passed by Mr.B.M. Bajaj, Additional District Judge, Fast Track Court, Gurgaon and the property in dispute and parties inter se are same. Regular Second Appeal 884 of 2004 has been filed by Ibrahim and Illiyas (plaintiffs) and Regular Second Appeal No.2781 of 2004 has been filed by Aarstum, Rabeena and Saista (defendants), who are minor daughters of Kasam, real brothers of Ibrahim and Illiyas (plaintiffs), through their maternal grandfather Azmat. 2. The plaintiffs filed the present suit for declaration to the effect that they are owners in possession, in equal shares, of the agricultural land in dispute, mentioned in para Nos. 5 (i) and (ii) of the plaint and the defendants have no right, title or interest therein with consequential relief of permanent injunction restraining the defendants from alienating, in any manner, the land in dispute or interfering in the possession of the plaintiffs over the same. 3. In brief, the facts of the case, are that Ibrahim and Illiyas (plaintiffs) and Kasam, father of the defendants, are brothers. Their father Nanha died on October 05, 1996. All the three brothers inherited the property of their father under succession. Thereafter, Kasam, father of the defendants died on January 22,1997 leaving behind his son Mustkin and the defendants. The mother of the defendants had pre-deceased their father. After the death of Kasam, his son Mustkin inherited his property. Mustkin also died in May, 1997. The defendants, who are minor daughters of Kasam, are residing with their maternal grand-father, namely, Azmat. 4. It has been pleaded in the plaint that the parties are Meos by caste and belong to agricultural tribe of District Gurgaon. In matters of succession they are governed by Riwaj-iam of District Gurgaon. It is further pleaded that daughters in no case can inherit the property of their father, whether ancestral or non-ancestral. According to the plaintiffs, on the death of Mustkin in May, 1997, the agricultural holding inherited by him from his father Kasam, devolved upon the plaintiffs, they being the real brothers and successors-in-interest of Kasam. Sisters of Mustkin have no right to inherit the disputed property.
According to the plaintiffs, on the death of Mustkin in May, 1997, the agricultural holding inherited by him from his father Kasam, devolved upon the plaintiffs, they being the real brothers and successors-in-interest of Kasam. Sisters of Mustkin have no right to inherit the disputed property. It is further pleaded that mutation,if any, sanctioned in favour of the defendants is wrong and illegal and not binding upon the rights of the plaintiffs. 5. In the written statement, filed on behalf of the defendants, it has been pleaded that the parties are not governed by custom, as alleged by the plaintiffs. After the death of Kasam, the defendants and their brother Mustkin inherited the share of Kasam in the property in dispute. It has been denied that the defendants have no right to inherit the land in question on the death of Mustkin. It is denied that the land in dispute is ancestral. 6. On the pleadings of the parties, the trial Court framed the following issues:- “1. Whether the parties are governed by custom in the matter of alienation and succession? O.P.P. 2. Whether the suit land is ancestral one? O.P.P. 3. Whether the mutation No.9070 dated 03.06.1997 is liable to be set aside? O.P.P. 4. Whether the suit is not maintainable in the present form? O.P.D. 5. Whether the plaintiffs are stopped from filing the present suit by their own acts and conduct? O.P.D. 6. Relief.” 7. The trial Court decided issues Nos.1, 2,4 and 5 in favour of the plaintiffs whereas issue No.3 was decided against them. As a result of its findings on these issues, the trial Court decreed the suit of the plaintiffs and declared them owners in possession of the suit land. However, it was also held that the plaintiffs would not be entitled to alienate the suit land without the permission of the Court. The permission was required till the defendants got married. The plaintiffs were also directed to pay maintenance to the defendants at the rate of Rs.700/- per month for each of the defendant to their guardian till they got married. The maintenance amount was revisable after every five years. 8.
The permission was required till the defendants got married. The plaintiffs were also directed to pay maintenance to the defendants at the rate of Rs.700/- per month for each of the defendant to their guardian till they got married. The maintenance amount was revisable after every five years. 8. Both plaintiffs and defendants challenged the judgment and decree of the trial Court by way of filing appeals before the Court of District Judge, Gurgaon, which were decided by the Additional District Judge, Fast Track Court, Gurgaon, vide impugned judgment and decree dated February 11,2004. The lower appellate Court set aside the judgment and decree passed by the trial Court; thereby dismissing the suit of the plaintiffs and allowing the appeal filed by the defendants. However, the lower appellate Court allowed the appeal of the plaintiffs qua payment of maintenance to the defendants. 9. Now, in these Regular Second Appeals, the plaintiffs seek reversal of the judgment and decree passed by the lower appellate Court whereby their suit has been dismissed and the defendants seek reversal of the same so far as the appeal of the plaintiffs qua payment of maintenance to them was allowed. 10. The case of the plaintiffs is that the parties are Meos by caste and in matters of succession and alienation are governed by Riwaj-i-am of District Gurgaon, they being agriculturalist tribe of this District. Their further case is that daughters cannot inherit the property of their father, whether ancestral or non-ancestral. 11. In the case of Abdul Hasan v. Smt. Kalsum and others, 2000 (2) R.C.R (Civil) 201, it was held by this Court that Meo Mohammedans of Gurgaon District, in the matter of succession, can Will away their properties in favour of their daughters and grand-daughters and the collaterals, reversioners or the last male-holder will not have the preferential right than that of the daughter or daughter’s daughter. It was further held that the entry of the Riwaj-i-am, though carries initial presumption of correctness, but such presumption is rebuttable by specific instances to the contrary. The instances, if proved, will not be treated inferior to the entry of the Riwaj-i-am. The general custom will prevail and it can only be defeated by a special custom,if pleaded and proved and such special custom should not be against the public policy.
The instances, if proved, will not be treated inferior to the entry of the Riwaj-i-am. The general custom will prevail and it can only be defeated by a special custom,if pleaded and proved and such special custom should not be against the public policy. The real blood cannot be put to second place than that of the blood of the collateral. The decision of this Court in Abdul Hasan’s case (supra) applies, on all fours, to the facts of the present case. 12. In the case of Kehar Singh and others v. Chandan Singh and others, AIR 1968 S.C. 806, it was held by the Hon’ble Supreme Court that presumption of truth attached to the entries of Riwaj-i-am will be considerably weakened if it adversely affects the rights of the females who have no opportunity of appearing before the revenue authorities. 13. A Division Bench of this Court, in the case of Mst. Harnak Kaur and another v. Maghi Singh and others, 1962 Punjab Law Reporter 878 held that the general statement that sisters do not succeed to their brother’s property appearing in Rattigan’s Digest of Customary Law is found in Riwaj-i-am of all districts. Much weight cannot be attached to such a general statement. 14. In view of the above, the entries of Riwaj-i-am, even if in favour of the plaintiffs, cannot be taken into consideration, they being adversely affecting the rights of the minor defendants. It was rightly held by the lower appellate Court that since the plaintiffs have been found to be not entitled to the relief of declaration and permanent injunction in respect of the property in dispute, the defendants are also not entitled to the relief of maintenance at the rate of Rs.700/- per month for each defendant, as allowed by the trial Court. So, the judgment and decree passed by the trial Court were rightly set aside in toto. The findings of the lower appellate Court are unimpeachable being based on proper appreciation of evidence and legal position. I do not find any infirmity or illegality in the impugned judgment and decree which may warrant interference by this Court in exercise of its appellate jurisdiction. 15. For the aforesaid, I do not find any merit in these appeals and dismiss the same. There shall be no order as to costs. ------------------