Aziz Dar and Others vs Mst. Fazli and Others

J.N. Wazir, C.J.

This is Plaintiffs' appeal and arises out of a suit for declaration that the alienation made by Mst. Khatji and Mst. Fazli of 11 kanals and 1 marla of

land situate in village Nihalpura, Tehsil Baramulla, in favour of Dina Nath vendee by virtue of a sale deed dated the 23rd Maghar 2001 is invalid

and ineffective so far as their rights and interests in the land were concerned.

The following pedigree table will explain, the position of the parties in this case.

NOORA

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____________________________________________________________________

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Sidiq Munawar

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______________________________________________________ _____________________

| | | | | | | |

Karim Ali Aziz Sultan Subhan Aziz Abdulla Ahmed

| | | | |

_____________ _____________ __________________ Rehman Ahad

| | | | | | | |

Guffar Gulla Mohd. Ahmed Sattar Kamal Jamal _________

| | |

________________ Khatji Fazli

| | |

Rehman Raja Ramzan

The Plaintiffs who are the descendants of Sidiq's branch alleged that the parties were governed by custom and that Mst. Khatji and Mst. Fazli,

not being absolute owners of the property, could not alienate that property in favour of Dina Nath vendee. They admitted in their statement before

the issues that they were governed by custom by which daughters were excluded from inheritance unless they were Khana Nashin daughters. Mst.

Khatji and Mst. Fazli, not being Khana Nashin daughters, had limited interest in the property and they could not alienate the land in favour of Dina

Nath vendee.

The suit was resisted by the Defendants on the ground that the property belonged to Mst. Khatji and Mst. Fazli being the Khana Nashin

daughters of Rehman and they were competent to alienate the property in favour of Dina Nath. Various other pleas were taken by the Defendants

but it is not necessary to reiterate them here as they are not necessary for the purpose of this appeal.

The suit was decreed by the Subordinate Judge Baramulla holding that Mst. Khatji and Mst. Fazli were not the Khana Nashin daughters and

had limited interest in the property and they could not alienate the property in favour of Dina Nath Defendant and the alienation made by virtue of

the sale deed dated the 23rd Maghar 2001 was not binding on the Plaintiffs. The Defendants appealed and the District Judge overset the decree

passed by the trial Court and remanded the case to it with the direction that it should ascertain the exact dates of death of Rehman, the father of,

the Defendants Mst. Khatji and Mst. Fazli, and of Ahad, the cousin brother of Rehman, and then try the suit afresh and dispose of it according to

law.

The trial Court after the remand found that Rehman died on the 21st Maghar 1986 whereas Ahad died on the 27th Poh 1986. It again came to

the conclusion that the Defendants had no right to alienate the property being limited owners and the sale would not affect the rights of the Plaintiffs

in the suit land. The Plaintiffs' suit was decreed. The Defendants went up in appeal and the District Judge affirmed the finding of the trial Court that

the Defendants were not the Khana Nashin daughters but he came to the conclusion that the Defendants Mst. Khatji and Mst. Fazli were the

nearest agnates and were entitled to succeed to the property in preference to the Plaintiff's who were distant kindreds. The Defendants' appeal was

allowed and the Plaintiffs' suit was dismissed. Against the judgment and decree of the lower appellate Court the Plaintiffs have come up in appeal.

The appeal was presented off 4-11-2008 on behalf of eight Appellants who had affixed their thumb impressions on the memorandum of appeal

but it is not clear whether these thumb impressions are those of the Appellants as their names are not written under their thumb impressions. The

learned Counsel for the Respondents argued that some of the Appellants died before the appeal was presented and some had died after and as

their legal representatives had not been brought on the record within the period of limitation, therefore, the appeal abated in toto.

The appeal was sent back for enquiry and report in regard to the date of the death of certain Appellants and from the report it appears that

substitution applications in regard to some Appellants was not within time. The question for consideration is whether or not the appeal abates in

toto.

The argument on behalf of the Respondents is that after the sale was effected by Mst. Khatji and Mst. Fazli in favour of Dina Nath vendee they

had remarried and according to the Plaintiffs, the right of the vendors, being limited, the property reverted to them and they were the owners of that

property and had specified shares in the property. As the appeal was filed by only a few of the Appellants, their appeal, therefore, abated in toto

inasmuch, as the appeal could not proceed in the absence of some of the Appellants whose legal representatives were not brought on the record.

We do not see much force in this contention. It is true that the Defendants vendors after alienating the property had remarried before the suit

was instituted by the Plaintiffs. The Plaintiffs' case was that the sale deed executed in favour of Dina Nath was inoperative and ineffective so far as

their rights in the property were concerned as the Defendants had limited interest in the property and they were not competent to alienate the

property. The Plaintiffs were fully competent to file a declaratory suit in order to remove the cloud on their title which was cast by virtue of the sale

deed executed lay the Defendants. It was open to anyone of the Plaintiffs to file a declaratory suit in order to avoid the effect of the sale deed

which, according to the Plaintiffs, was invalid and ineffective so far as their interests were concerned. In these, circumstances the appeal, in our

opinion, would not abate even if some of the Appellants have not been joined in the appeal or have died without their legal representatives having

been brought on the record in time.

Order 22, Civil Procedure Code, deals with the effect of the death on pending suits or appeals. It distinguishes between cases in which ""right

to sue"" survives and those in which it does not. The test whether a right to sue survives in the surviving Plaintiffs or against the surviving Defendants

is whether the surviving Plaintiffs can alone sue or the surviving Defendants would alone be sued in the absence of the deceased Plaintiff or

Defendant respectively.

As pointed out above, the declaration sought is to avoid the alienation made by virtue of the sale deed dated the 23rd Maghar 2001. Some of

the Plaintiffs or any one of them could have brought this suit and got a declaration from the Court that the sale deed was not binding on their on his

reversionary right in the suit land and, therefore, the appeal would not abate on the ground that the legal representatives of some of the Appellants

have not been brought on the record in time.

The preliminary objection raised by the Respondents is overruled.

As regards the merits it may be mentioned here that Ahad, the cousin brother of Rehman (father of Mst. Khatji and Mst. Fazli), was the last

male holder of the property in dispute. The pedigree table is not disputed. It is common ground between the parties that they are governed by

custom in the matter of inheritance. The Plaintiffs themselves are basing their claim on custom, and their case is that the daughters do not succeed

unless they are Khana Nashin daughters and as the Defendants were not Khana Nashin daughters, therefore, they have no right to the property in

dispute and further that they, the Plaintiffs, being the agnates are entitled to succeed to the property. It has been vehemently argued that Mst. Khatji

and Mst. Fazli are not agnates and, therefore, they have no right to succeed.

The lower appellate Court, relying on a ruling of this High Court, reported as Ahmad Dar Vs. Mt. Mukhti, , has held that the Defendants are

the nearest agnates and had preferential claim to the property left by Ahad and were competent to alienate that property. It is argued that females

cannot be agnates and in support of this contention reliance is placed on question No. 69 of Sant Ram Dogra's Code of Tribal Custom.

The record of custom in Sant Ram Dogra's Code of Tribal Custom in Kashmir as expressed in question and answer No. 69 is an ambiguous

one. In answer to question No. 69 it has been stated in regard to Gujjars and Bakkerwals of Nunar that ""daughters do not inherit even if they

remain at home. In default of agnates only, they can succeed to the property"". ""Agnates"" is said to mean grandfather's descendants in the male line.'

Relying on this part of the answer it is argued that daughters cannot be considered agnates because they are altogether excluded, as appears

from the first part of this answer. It is contended that daughters can succeed only if the agnates do not exist. Therefore, it is inferred that daughters

do not come within the category of agnates.

The inference which the learned Counsel wants us to draw cannot be drawn and it does not follow that females do not come within the

category of agnates if their relation to the deceased can be traced without the intervention of female links, In this part of the answer the learned

author has defined agnates to mean grandfather's descendants in the male line. This definition finds full support from Tyabji's Muhammadan Law

who defines agnates in Section 605 of his Muhammadan Law, 3rd Edition, on page 834 as meaning a person whose relation to the deceased can

be traced without the intervention of female links. The dictionary meaning of the word 'agnate' is given as the descendant from the same male

ancestor; a relative on the father's side. In Muhammadan Law by Fitzgerald at page 125 it is stated that ""father is both sharer and residuary, i.

e...there can never be return, ""radd"" while the father is alive. With male agnate descendants, sharer only 1/6. With female agnate descendants,

sharer and residuary.

It is, therefore, quite clear that in Muhammadan Law females do come within the category of agnates provided their relation to the deceased

can be traced without the intervention of female links.

The Defendants Mst. Khatji and Mst. Fazli are connected with the last male holder of the property without the intervention of a female link and

therefore, they are his agnates. The Plaintiffs Appellants are also agnates but of a remoter degree. The nearest agnates exclude the remoter in

Muhammadan Law. The Defendants, therefore, have been rightly held to be competent to alienate the property in favour of Dina Nath Defendant

vendee.

In the result, we find no force in this appeal which is dismissed, but in view of the circumstances of the case we leave the parties to bear their

own costs in this Court.

Gopalakrishnan Nair, J.

I agree.