Hassan Bhat vs Gh.Ahmad Khanday and others

This Latters 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 10""'June, 2005.

It is necessary to give the flask back of the case, the womb of which has given birth to the present LPA.

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 KhanaNishin 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.

The defendant has resisted the suit on the grounds that parties are governed by custom. The plaintiff is not KhanaNishin 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.

It appears that on 14th August 1985, the following issues were framed in the case:

Issue No.l. 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 nc.. joinder of the heirs of Fazi dagughter of Habib Bhat? OPD

Issue No.l. 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/or 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 in an

appeal? OPD Issue No. 10. Relief

The learned Additional District Judge. Srinagar framed the following additional issue as issue No. 11 in the case:

Adill. Issue No. 11: Whether in the 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 fullfledged owner9 OPD

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 issuewise finding returned hereinabove it is clear that the plaintiff has established her case for inheriting her deceased father to the extent

of I/3rJ 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 plaint iff is in view of the issuewise finding returned hereinabove entitled to inherit her

father to the extent of l/3rJ of the property left behind by her father.

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.

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.

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 hut 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 trial court on this

issue.

Heard.

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 and 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.

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';

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.

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.

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.

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.

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 and K

It is profitable to reproduce paras8 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...........

Finally in view of the very short period from which the succession in the family of the parties opened, it is difficult to come to 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. In

these circumstances therefore having regard to the uncertain, and ambiguous nature of the evidence given by the1 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.

This Court has also held in case Mst. Khatji v. Mst. Mukhti and Others, reported in AIR 1963 J and 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 asfollows:

I. That there is a well established custom in the valley under which a Khanna 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.

That there is no well established custom to the effect that if a daughter fails to establish her status as a Khanna 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.

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 Khanna Nishin daughter and not otherwise under any circumstances whatsoever. 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 Khanna 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 I/6'h of the share in

the property in question as a residuary under her personal law.

This High Court in case Ahad Mir v. Akram Mir and Others., reported in 1982 SLJ 74 has held as under:

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 Nashin 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 Nashin daughter. These two custom are absolutely separate in character and should not be confused asbeing part of the

same custom. The plaintiffs 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 in 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 simplicitor in which case is entitled to get I/5'h shares in the property left by

Hamza Mir except the lands which he had sold to Akram............

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 Khananishin daughter. They have further held that the defendants have not

been able to establish the custom pleaded by them that a daughter can inherit only as a Khananisheen 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 and 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 Khananishin daughter, she cannot

succeed to the property even as a daughter simpliciter under Mohammaden 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.

Keeping in view the ratio laid down in the above said judgments, 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.

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 Nishin 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.

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 no interference.

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.

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 cosharers. The possession of one cosharer is deemed to be the possession of all cosharers. It was for the defendant to plead

and prove adverse possession and ouster.

The Apex Court in case Darshan Singh v. Gujjar Singh reported in AIR 2002 SC 606 has held as under:

In our view, the correct legal position is that possession of a property belonging to several cosharers by one cosharer shall be deemed that he

possess the properly on behalf of the other cosharers unless there has been a clear ouster by denying the title of other cosharers and mutation in the

revenue record in the name of one cosharer would not amount to ouster unless there is a clear declaration that title of other cosharers was denied.

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.

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.

Viewed thus, the impugned judgment and decree is upheld and accordingly the Latters Patent Appeal is dismissed.