Ahad Lone vs Azizi

Niamat Ullah, President

(1) The following pedigree will explain the position of the parties to this litigation:

JAMAL DAR (died in S. 1975)

1st Wife

2nd Wife Mat. Frechi (Deft. 1)

Ahad Dar (died in 2000)

Wali Dar (Issuelessdied in 1977).

Mt. Azizi Mt. Ashimi Mt. Kliatuni (Pltf.1) (Pltf.2) (Dft.3).

(2) After the death of Jamal Dar in 1975, the property in dispute, which belonged to him, was mutated in the names of his two sons, Ahad Dar

and Wali Dar. On the death of Wali Dar in 1977, his mother Mt. Frechi applied for mutation of names claiming the entire share of her son. Ahad

Dar contested her application but on the statement of Mt. Frechi, in which she claimed a limited interest terminable on her death or remarriage, he

appears to have acquiesced in the mutation of names being effected in her favour. By an agreement, dated 10th Har, 1992, Ahad Dar agreed to

give a portion of the produce of the land to Mt. Khatji in consideration of the latter leaving him in possession of her share. It is not disputed that

Ahad par obtained possession under the agreement or possibly was already in possession, and that after his death, which occurred in 2000, the

share in dispute as well as his own came into the possession of his daughters, namely, the two plaintiffs and the third defendant.

(3) On 13th Maghar, 1999, Mt. Frechi executed a deed of mortgage which was followed by a saledeed, dated 16th Magh, 1999, in respect of

her share in favour of the defendantappellant, Ahad Lone. The suit ,which has given rise to this appeal, was then brought by the plaintiffs for a

declaration that the aforesaid mortgagedeed and the saledeed are invalid and ineffective as against her interest in the property conveyed thereby, in

asmuch as, Mt. Khatji had only a life interest. The plaintiffs based their claim on the allegation that Ahad Dar had made his daughters 'Khana

Nishin' daughters and by a custom, applicable to the family, they rank as the sons of their father and entitled to all the rights of inheritance as if they

were his sons. All the three Courts below have concurred in finding that the plaintiffs were made 'Khana Nishin' daughters by Ahad Dar and

therefore, according to the custom, pleaded by the plaintiff, they were entitled to rank as sons of Ahad Dar. The City Judge, Srinagar, however,

held, and his view was accepted in appeal by the District Judge that according to the custom proved in the case 'Khana Nishin' daughters are

entitled to succeed to the property of their father but are not entitled to inherit collaterally. On that finding the plaintiffs were unsuccessful in the first

two Courts. In a second appeal to the High Court, a Division Bench reversed the decrees of the Courts below, holding that Mt. Frechi had a

limited interest terminable on her death or remarriage according to her statement in the mutation proceedings to which Ahad Dar (was a party. The

learned Judges do not state in so many words, that there was an implied family arrangement to the effect that after the death or remarriage of Mt.

Frechi, Ahad Dar would succeed so as to vest the estate in Ahad Dar immediately. But the following observation indicates that there was some

such idea in the minds of the learned Judges. They say:

The mutation order dated 20th Baisakh, 1977, quotes the .statement of Frechi to the 'effect that she was in possession as the widow of Jamal Dar

and was entitled to remain in possession until her death or remarriage. By the mutation order it was held that Wali Dar was the son of Frechi and

that the mutation of Wall's estate would be in favour of Frechi until her death or remarriage after which the question of the title of Ahad would be

taken. This being the order it was no longer necessary for Ahad to contest and he did not contest.

Later on the learned Judges note :

Ahad was the person who would be entitled to the property as full owner on the death or remarriage of Frechi and therefore Frechi '& possession

could not be adverse to him.

This observation was made in repelling the plea of adverse possession put forward on her behalf. It is plain that in the circumstances, appearing

from the mutation proceedings, Mt. Frichi could not be in adverse possession. The learned Judges eventually heid that ""while this intervening

interest (Frechi's) was existing, Ahad died and his heirs areentitled to succeed to aim."" Reliance was placed in the High Court on '38 PLR., J & K

p. 86', for the proposition that 'Khana Nishm' daughters cannot inherit the property of her brother antler the customary law. The High Court

distinguished this case on the ground that the plaintiffs in the present case are not, suing for possession but only 1'or declaration, as reversionary

and that the question as to who will be entitled to possession will fall to be decided on the death of Frechi. In this view the learned Judges granted

the declaration prayed for by the plaintiffs.

(4) The learned Advocate for the defendantappellant has reiterated his client's contention that the plaintiffs are not entitled to sue as 'Khana Nishin'

daughters with respect to the property of their uncle who was a collateral relation. It was also argued that Ahad Lone, the transferee of Mt. Frechi,

is entitled at least to payment of the consideration which he actually advanced to Mt. Frechi. The Board may say at once that this last contention

has no force. Ahad Lone having taken transfers of property in which his transferor had only a limited interest he cannot be entitled to any payment

by the plaintiffs as a. condition precedent to a declaration being granted to them. As regards the main contention, namely, whether the plaintiffs as

'Khana Nishin' daughters, are entitled to sue for a declaration that the transfers made by Mt. Frechi do not affect their reversionary interest, the

Board are of opinion that the effect of the custom found by the lower Courts has not been properly assessed. It is a well established rule of law

and it was so held by this Board in 'Dewan Jewan Nath Madan v. Rasul Gadoo', relying on 'Ram Nundun Singh v. Janki Koer', 29 Cal 828 and

'Janeswari Babusin. v. Ekradeswar Singh', 3 Ind Cas 207, that a custom supersedes the ordinary law so far as it is proved and everything beyond

the proved custom must be governed by such law. It was further held there that ""not only each custom but each alleged separate incident of a

custom must be proved to exist as Customary Law"". Now, Mt. Frechi was entitled to succeed by custom to the estate of her son for life or till her

remarriage and thereafter the estate would devolve upon her sons' brother. The evidence does not take us so far that succession to her son's estate

would open on her death as would be the case under Hindu Law and that the heir then found to be nearest would succeed. Any analogy derived

from Hindu Law will be misleading. A Hindu widow fully represents the estate of her husband which cannot vest in any of his collateral relatives

during her lifetime. She is the surviving half of her husband and the husband is supposed to live in her person. These notions cannot be assumed

where a Muslim female is entitled to a life estate under a custom unless the evidence shows unmistakably that the same incidents are part of the

customary law. On the contrary where, as in this case, a person dies leaving his mother and a brother, their shares according to Mohammedan

Law, are: mother I/6th and brother the remaining 5/6th both taking in absolute right. The Mohammedan Law, however, stands superseded by a

custom under which the mother instead of taking I/6th in absolute right takes the whole for life and the brother, instead of taking only 5/6th

immediately, takes the whole after the termination of the interest of the mother. The evidence takes us no further in this. It follows that a life interest

becomes vested in the mother and the remainder becomes immediately vested in the brother. There is no warrant for the proposition that the

vesting of the remainder shall remain in abeyance till the mother dies and the nearest collaterals then existing will acquire a vestea interest. In this

view the Board base their conclusion on two grounds:

(1) In the mutation proceedings, following the death of Wall Dar, Mt. Frechi and Ahad tacitiy agreed that the latter would succeed to the share of

Wall Dar after the death or remarriage of Mt. Frechi who would have a limited interest. The result of such an understanding was that the interest in

remainder immediately vested in Ahad Dar;

(2) The custom proved in the present case had the effect of vesting the interest in remainder in Ahad Dar as already explained. In either view Ahad

Dar's interest devolved on his death on his daughters. The case is not one in which the plaintiffs succeed collaterally but they succeeded to the

vested interest which their father possessed and though the latter died in the lifetime of Mt. Frechi, his interest did not cease but devolved upon his

daughters who became entitled tothe share after the termination of the limited interest of Mt. Frechi.

(5) In the result the Board humbly advise His Highness to affirm' the decree of the High Court and to dismiss the appeal with costs.

(6) D.H. Appeal dismissed.