Mohammad Akbar Bhat vs Mohammad Akhoon and others

S.N. Bhat, J.—This civil second appeal against the decree passed by the District Judge, Baramulla, dated 28th June 1969 confirming a

decree passed by the Sub Judge Baramulla, on 30-11-1967. arises out of the following facts:-

Mohammad Akhnoon, plaintiff, brought a declaratory suit with a prayer that the sale deed executed and registered on 23-5-1961 for 6 kanals 2

marlas of land under different survey numbers in Khewat Nos. 1, 2 and 3 situate in village Hum Tehsil Baramulla by Mst. Farzi, the widow of

Ahad, brother of Mohammad Akhoon plaintiff, in favour of the defendants 2 to 5 be declared inoperative and void after the death of Mst. Farzi.

The case of the plaintiff was based on a custom which according to him was to the following effect: That a Muslim widow gets the estate of her

deceased husband for her maintenance during her lifetime or till her remarriage and after her death, the estate reverts to the collaterals of the

deceased husband and as such a widow cannot make an alienation, temporary or permanent, of the property left behind by her husband. There

were other pleas raised; in the written statement this custom was denied. The pleadings of the parties gave rise to the following eleven issues:-

(1) Whether the parties are governed by custom and whether a widow takes the property of her husband till remarriage or death only? O. P. P.

(2) In case issue No. 1 is not proved, can a widow alienate the property of her husband? O. P. P.

(3) Whether a widow can transfer the property left by her husband to meet the legal necessity? O. P. D.

(4) In case issue No. 3 is proved, whether the defendant No. 1 had necessity to alienate the land left by her husband? O. P. D.

(5) Whether the suit is not maintainable, because of the misjoinder of the parties? O. P. D.

(6) Whether the suit is not maintainable in the lifetime of the defendant No. 1? O. P. D.

(7) Whether all the co-sharers have not been impleaded as parties and how will it affect the present suit? O. P. D.

(8) Whether the sale deed executed by the defendant No. 1 in favour of the defendants Nos. 2 to 5 is a fictitious one and the amount of

consideration is only nominal and how does it affect the present suit? O. P. P.

(9) Whether the suit land was the joint and undivided property of the plaintiff and the husband of the defendant No. 1? O. P. P.

(10) In case issue No. 9 is proved, how does it affect the present suit? O. P. D.

(11) Relief.

The trial Court recorded the evidence of the parties and ultimately relying upon the evidence of the plaintiff's witnesses and an entry in the book

known as Code of Tribal Custom in Kashmir, drawn up by Santram Dogra held that a Muslim widow had only a life interest in the property which

she inherited from her deceased husband and accordingly decreed the suit of the plaintiff. The lower appellate Court remarked:

The two witnesses produced by the plaintiff Rehman Wani and Mehda Wani have both stated that a widow has a limited interest in the property of

her husband and she cannot alienate it but can retain the same during her lifetime or till her re-marriage. This is the custom which is supported by

the Book on Tribal Customs by Sant Ram Dogra in answer to question 55. The learned author has said: ""A widow inherits only life interest.

The defendants have not rebutted this evidence and the two witnesses examined by them Habib Joo and Saif-Ullah do not speak a word about

it............

It endorsed the finding of the trial Court on this point. It seems that there was no serious dispute about the custom in the lower courts; because, as

would appear from the judgment of the learned District Judge, the learned counsel for the appellants had tried to argue that a widow could alienate

the property for legal necessity. This point of legal necessity was therefore argued before the courts below and both the courts held that no legal

necessity had been proved to authorise the transferor, Mst. Farzi, to alienate the land. Against this concurrent finding, the present appeal has been

preferred to this Court.

This appeal was originally heard by my learned brother Mian Jalal-ud-Din, J. who thought that the custom setup by the respondents required

closer scrutiny and an authoritative pronouncement by a larger Bench. This case was therefore placed before His Lordship, the Chief Justice for

constituting a larger Bench and His Lordship, the Chief Justice, directed that the case be heard by all the four Judges of this Court. Consequently

we heard arguments of the learned counsel for the parties.

The argument of the learned counsel for the appellant is two folds firstly that there is no such custom among Muslims of Kashmir, which invests

the estate of a deceased husband in a Muslim widow only till her lifetime or till her remarriage. In the alternative his argument is that even if such a

custom is held to be existing, it has ceased to have the force of law; this custom was borrowed from Hindu Law; now by the Hindu Succession

Act full proprietary rights have been conferred upon widows who would before the Act get only life estate in the property of their deceased

husbands. This point shall be taken up further in course of this judgment.

Although this custom, set up by the plaintiff, was not seriously disputed in the lower Courts, yet I think as the matter has been referred to the Full

Court, some authoritative pronouncement on this proposition has to be made. I might straightway say that the authorities on the point of custom, as

given from time to time by this Court or even by the Board of Judicial Advisors, are not uniform and there is a great deal of conflict in those

authorities; but we shall examine these authorities on the application of custom generally and on the special point involved in this case rather

critically.

Some confusion has cropped up, in the decision of cases wherein there is a controversy whether the personal law of the parties would apply or

custom. Section 4 of the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1997, Act. No. 17 of 1997 lays down ""The laws administered

and to be administered by Civil and Criminal Courts of the State of Jammu & Kashmir are and shall be as follows:-

(a) x x x x x

..........................

(d) In questions regarding succession, inheritance special property of females, divorce, dower, adoption, guardianship, minority, bastardy, family

relations, wills, legacies, gifts, wakf, partition, castes or religious usages or institutions the rule of decision is and shall be as follows:

The Mohammadan Law where the parties are Mohammadans and the Hindu Law in cases where the parties are Hindus, except 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 or 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:

Section 5 of the same Act says that:-

All local customs and mercantile usages shall be regarded as valid unless they are contrary to justice, equity and good conscience or have been, or

shall be declared to be void by any competent authority.

These two sections read together would lead to the inevitable inference that customs and mercantile usages shall be regarded as valid unless they

are contrary to justice, equity and good conscience or are otherwise declared void by competent authority. This being the legal position, even then,

the learned counsel for the appellant begins by stating that the normal presumption is that in matters of succession (let us not discuss other matters)

the rule of succession should be the personal law of parties if they are Muslims or Hindus as the case may be. Personal law can be only ignored if a

custom is proved, laying down the mode of succession in a different manner. As I said earlier there is some conflict of authorities on this point. I

may straightway say that till the time the Board of Judicial Advisors were appointed in the State, the normal rule of succession was held to be as

laid down in the book entitled Code of Tribal Custom in Kashmir, drawn up by Pt. Sant Ram Dogra. This Pt. Sant Ram Dogra was the Assistant

Settlement Officer, Kashmir who was vide Order dated 12th Maghar 1972 put on special duty. The said order runs as under:-

Under his highness' command (vide Chief Minister's letter No. 1876 dated August 12, 1915) Pandit Sant Ram Dogra, Assistant Settlement

Officer, Kashmir, has been appointed Special Officer, to compile Riwaj-Am (general custom) in Kashmir and it was complained the zamindars do

not respond to the summons issued to them. Therefore, as recommended by the Department, His Highness (vide Chief Minister's letter No. 4707

dated October 29, 1915) has sanctioned that the said Special Officer shall be competent to fine upto the sum of Rs. 10 any person who does not

respond to the summons issued by him.

After touring the different parts of the valley and making enquiries regarding succession and inheritance, family relations and other matters detailed

in his book, he compiled his Code of Tribal Customs in Kashmir incorporating there in the customs observed by the inhabitants of the valley. When

any question arose about which an answer could be found in this book (it may be noted that this book is a compendium of questions and answers

about the different matters covered in the book) the same was followed and for this very reason we have very few reported cases relating to the

controversy between custom and personal law till the constitution of the Board of Judicial Advisors. In the valley this book was recognized as

laying down the law on the subject incorporated therein and nobody questioned its authority. I may here mention that in the villages this book has

not lost its authoritative character even yet. In the Mufasil great importance is attached to mutations. Disputes, common in villagers are usually with

respect to landed property and most of these disputes are decided in Revenue Courts and by Revenue Officers on the basis of this book.

Mutations thus attested are accepted by the villagers as the right disposition of lands by the attesting authorities.

I may now refer to certain remarks of Mr. M. A. Beg who was one of the two elected Ministers in the Maharaja Sahib's rule and who was later

the Revenue Minister of the State from 1947 to 1953. This gentleman belongs to the Muffassil and had an extensive knowledge of the matters

prevailing in the countryside. In a case cited as Abdulla v. Mst Fazi (Revn. Appln. No. 101 dated 18th Har 2007 decided on 18th Assuj 2007) (J.

& K.) he observed:-

............ I do not think the Wazir's view is correct. The property of Aziz had already been divided in equal shares and before him it was only the

Aaziz's share of Aziz's property which was in dispute. He should have, therefore, confined his judgment to that share alone. So far as the

application of personal law is concerned, it is moot question. The parties did not claim the application of that law and as universally known,

inheritance to landed property in Kashmir is governed by the customary law. It would have been for the parties to establish in Courts of Civil Law

in case they claimed departure from the application of customary law and a Civil Court would have gone carefully into that question and

established if the parties were justified in seeking exemption from the application of the custom. In a revenue court which is a court of summary

proceedings we have to administer the law governing succession to landed property according to custom prevailing in the valley............

In another case Mst. Khatooni v. Mst. Khurshi (Revn. No. 86 of 28th Jeth 2007 decided on 23-9-1952 (J. & K.) he has remarked:-

............ Wazir Wazarat has decided this case, as I have said above, on the basis of personal law. According to him in matter of succession to

agricultural property personal law is applicable to the parties. No proof of that fact is on record. It has been universally held in the valley of

Kashmir that in matters of succession to agricultural property among Mohammadans, customary law and not the Sharyat law applies. In a division

bench case of our High Court in which Hon'ble Justice Sir B. J. Dalal and Mr. Justice Qayum sat it was held............ It is well established that in

Kashmir Province, Mohammadan Law does not govern the right of inheritance of Mohammadans, but such law as modified by custom governs

those relations. Under the Mohammadan Law a daughter is an heir to father's estate but she is not such an heir in Kashmir Province with respect to

agricultural land unless she is a Khana Nashin daughter to her father............' I have followed this principle in earlier judgments and as is very

clearly brought out by commentaries on customary law prevalent in the valley of Kashmir, it may be safely assumed that as a rule custom applies in

matters of succession to agricultural property in the valley of Kashmir, Wazir Wazarat, therefore, was wrong in holding that personal law was

applicable to this case, particularly so when he had no evidence of that fact before him.

It is significant to note that Mr. Beg has quoted a Division Bench authority of (Hon'ble Justice Sir B. J. Dalal and Mr. Justice Qayum) this court in

support of his view and remarked that even those learned Judges had held that in the Kashmir Province. Mohammadan Law does not govern the

right of inheritance of Mohammadans but such law as modified by custom governs these relations. Under the Mohammadan Law a daughter is an

heir to father's estate but she is not such an heir in Kashmir Province with respect to agricultural land unless she is a Khana Nashin daughter of her

father. This observation quoted by Mr. Beg supports my remark that till the advent of Board of Judicial Advisors, it was accepted that the rule

governing succession to landed property in the valley of Kashmir was custom and not personal law of the parties. There is however, one reported

judgment on custom of this court in P. L. R J. & K. High Court Rulings S. 1979-1991 page 85 and it says that among Sikhs of Kashmir the

adoption of brother's daughter's son is valid by custom. In this judgment his Lordship, Mr. Justice Kanwar Sain, has held custom proved only on

six instances and the important remarks in this judgment are:-

............ the foregoing six instances of adoption by maternal uncles could hardly be characterised as stray instances in a small community of few

thousand men in this Illaqa. For it must be remembered that living memory of such instances cannot go much beyond 50 to 60 years and there are

no records forth coming of a period beyond 1950...........

Apart however from these instances, there are to be found records of custom which must be deemed as of considerable weight. The Code of

Tribal Custom in Kashmir drawn up by the Assistant Settlement Officer Kashmir on special duty in 1972-73 at pp. 60 & 61 states that there is a

custom of adoption amongst the Sikhs and that while the Sikhs of other places do not adopt a daughter's son, the Sikhs of Badgam and Baramulla

do.

In another authority Krishna Koul v. Sharda Nandan reported as 1 J. & K. LR 20 page 456 a Full Bench of this High Court held that there was a

custom among Kashmiri Pandits according to which a widow could adopt a son without the consent or permission of her father-in-law. In this

authority again reliance is placed on the entries in the Sant Ram Dogra's Code of Tribal Customs in Kashmir. This case, however went in appeal

before the Board of Judicial Advisors (reported as 1 J & K LR 20 (Vol. 11) page 186) who affirmed the finding of the High Court. In this

authority of the Board of Judicial Advisors Pt. Sant Ram Dogra's Code of Tribal Custom in Kashmir has been quoted in extenso and relied upon.

In Rasool Lone v. Mst. Rehmati reported as J & K LR Vol 4 p. 257 a Division Bench of this Court consisting of Chief Justice R. B. Ganga

Nath and Mr. Justice Masud Hasan held that the custom generally prevalent among the agriculturists in the Kashmir Valley is that daughters inherit

only. If they are Khana Nashin daughters otherwise they do not inherit at all and their Lordships further held that if a daughter failed to prove

herself to be a Khana Nishin daughter, she could not fall back upon Mohammadan Law.

In another authority, again of a Division Bench of this Court, reported as J & K LR Vol. IV page 264 the same view was repeated.

In Mst. Zebi v. Resha Mir reported as J & K LR Vol. 4 page 254 a Division Bench of this Court has held that succession could be governed

either by a custom or by personal law because there could not be two different and inconsistent rules of succession and inheritance. It has further

remarked that:-

It appears that some confusion exists as to whether a person who sets up a custom relating to succession can inherit under the Mohammadan Law.

It is only when a custom is set up by a plaintiff which is not admitted by defendants and the plaintiff fails to prove the existence of the custom that

the plaintiff would be entitled to succeed under the Mohammadan Law. In the absence of any custom governing succession, it is the personal law

which would apply.

In this case again Pt. Sant Ram Dogra's Code of Tribal Custom in Kashmir has been referred to. This case went in appeal before the Board of

Judicial Advisors (reported as J & K LR Vol. 8 p. 117). Their Lordships set aside the finding of the High Court and remitted some issues to the

trial court and their Lordships held that where plaintiff was nominated by her mother as Dukhtar Khana Nishin but she failed to establish a custom

under which she claimed as a Dukhtar Khana Nashin, the plaintiff was nevertheless entitled to succeed as a daughter simpliciter. Their Lordships

further held that if the daughter failed to establish a custom under which she claimed as a Dukhtar Khana Nishin nominated by her mother, she is

entitled to fall back upon Mohammadan Law and claim a share to which that law entitled her unless, of course, it is proved that by custom she is

excluded by some other heir and that Mohammadan Law has been superseded by such custom to that extent. Their Lordships discussed Question

58 of Pt. Sant Ram Dogra's Code of Tribal Customs in Kashmir, which was to the following effects:

In what circumstances are daughters entitled to inherit ?

Answer: ""Daughters inherit only when they reside with their husband, in their fathers home and are made Dukh-tar-i-Khana Nishin, otherwise not.

Their Lordships remarked:

It is contended that the words 'only' and 'otherwise not' imply that a daughter who was not a Khana Nishin daughter was excluded from inheritance

absolutely and not merely as against particular relations. A literal construction may lend support to this argument but it is extremely doubtful to say

the least, that the implications of that construction were present either to the mind of Mr. Dogra or that of the persons on whose information the

custom was recorded. It is in the highest degree improbable that the answer would have been as recorded if the question had been put clearly as to

whether such a daughter could not be allowed to inherit whoever else may take the property, for instance the Crown by escheat or a very distant

kindred. Probably they had such relations in their mind as a widow, cousins and the like and it may be as against such heirs the daughter's right

under Mohammadan Law is not to prevail. For these reasons the answer to question No. 58 cannot be regarded as free from ambiguity where

total exclusion of the daughter is in question. Evidence in proof of a custom in derogation of personal law should be unambiguous.

This authority has been followed since then. Reference may be made to 3 J & K LR 23 Vol. 12 page 16 where a Division Bench of this Court

relying on this authority 8 J & K LR 117 observed that if a daughter failed to establish a custom under which she claimed as a Dukhtar Khana

Nashin nominated by her mother she is entitled to fall back upon Mohammadan Law and claim a share to which that law entitled her unless of

course it is proved that by custom she is excluded by some other heir and that Mohammadan Law has been superseded by such custom to that

extent.

It will be noticed however that their Lordships of the Judicial Board even after deciding the case on the basis of personal law still say ""unless of

course it is proved that by custom she is excluded by some other heir and that Mohammadan Law has been superseded by such custom to that

extent."" This shows that their Lordships had some lurking feeling in their august minds that some custom was there which was not quite in

consonance with personal law. What is still more significant is that their Lordships have not refused to accept the recitals in Pt. Sant Ram Dogra's

book as being authoritative; on the other hand relying on the reply given to the question therein they have tried to interpret it and then come to a

conclusion enunciated by them.

In Din Mohammad v. Karim Bibi reported as 3 J & K LR 23 (Vol. 3) page 122, the Board of Judicial Advisors held that any modification of

personal law should be specifically pleaded and evidence in support of it should be strictly construed. To supersede personal law custom, is to be

established as ancient, uniform and unambiguous. Their Lordships in the body of the judgment remarked

The Board have noticed in cases coming up before them that plea of custom is seldom couched in specific terms. It is pleaded in a sweeping

manner that the parties are governed not by Mohammadan Law but by custom. It is of the utmost importance that custom relied on by a party in

modification of personal law to which prima facie, every family is subject should be specifically pleaded..............

And therefore their Lordships found fault with the pleadings and decided the case on personal law. Here it may be remarked that their Lordships

were perfectly correct in stating that custom was seldom couched in specific terms. Their Lordships attributed it to bad pleadings but I think it was

not so much of bad pleadings as the deep-rooted impression and belief in the minds of all concerned and the prevalent practice that custom was

the basis of succession rather than personal law, which brought forth such pleadings.

I have mentioned a few authorities to show that there is no uniformity in the pronouncements of this court on the question whether succession

to landed property should be on the basis of custom or personal law of the parties. As I said earlier the trend of decisions upto the time of Board

of Judicial Advisors took up these questions was to rely upon Pt. Sant Ram Dogra's book and apply the custom as held by him to be established in

the Valley of Kashmir. At the present moment the least that can be said is that there is conflict and confusion on this matter. I would however,

suggest that the legislature of the State take an early opportunity of clearly expressing itself by means of proper enactments whether in matters

relating to succession and other matters which come up before the Courts of Law from day to day Personal Law of the parties should be made

applicable or custom, and if so what should be that custom in a particular matter.

With these general observations let me now advert to the points in dispute in this case. There is no direct authority (at least none has come to

my notice) wherein the status of a Mohammadan widow vis-a-vis the property of her deceased husband has been adjudicated upon either under

Personal Law or according to custom. The custom as given in Pt. Santram Dogra's book about this matter is contained in Question Nos. 49, 50,

51, 52, 53, 54, 55, 56 and 57. Question No. 55 is the relevant one and it reads as under:-

What is the nature of widow's interest where she inherits the estate ? What is the extent of her powers of alienation ?

Answer: All Mussalman tribes except as mentioned below: Widows inherit only a life interest in the estate of their deceased husband. They can

transfer their rights only in favour of their daughters, adopted sons, or Khanadamad and nobody else. All Mussalman tribes of Chharat and Sunnis

of Shopian agree with the custom with reservation that widows cannot adopt. Then there are mentioned the exceptions which are about towns

people of Sopore.

All Mussalman tribes of Khannabal. Bahats, and Dunga Haz of Baramulla, Pirs, Babas and Sayeds of Badgam and Shias of Badgam and Nunar. It

is said that they follow the Sharyat in the matter.

Among Gujjars of the Handwara, Badgam and Nunar and Bakkarwals of Nunar widows have no power of alienation.

About Srinagar Mussalmans if is said that widows have full powers over their shariat shares as regards its enjoyment and alienation.

Then are discussed the cases of Bomba Rajas, Sikhs, Pandits in general and Srinagar Pandits.

This custom and the exceptions appended thereto clearly show that those people who live mainly on agriculture can claim inheritance in landed

property on the basis of custom granting a widow only a life estate in the property of her deceased husband. Dunga Hanzs, Pirs, Bahas, Sayeds

and such like people and Srinagar Mussalmans as a whole did not live on agriculture but had different professions to follow, hence they had not

adopted this custom.

According to this question except in the case of exceptions mentioned above, a widow has only a life interest in the property which she has

inherited from her husband. Ordinarily widows inherit the entire landed property of their husbands. This is contained in question No. 49, the reply

whereto says ""if there is Dukhtar Khana Nishin a widow can get only dower. In the presence of the brother's of the deceased or their descendants

the uncles or their descendants, or great uncles or their descendants the widow inherits only a life interest in the estate till remarriage. When the

widow dies, the heritage goes to the deceased husband's agnates.

This is the custom recorded in Pt. Sant Ram Dogra's book and followed in this case and I should say not even seriously challenged. The

defendants however pleaded legal necessity which has not been held to be proved by both the courts below. Here before us this custom is

challenged on the ground that it was borrowed from Hindu Law and after the Hindu Succession Act, a widow inherits an absolute interest in the

share of her deceased husbands estate. According to the learned counsel for the appellant this rule was considered unreasonable by the Hindus

themselves, the custom borrowed by the Mussalmans of the Valley based on this rule of Hindu Law should also vanish, as it has ceased to be

reasonable in the eyes of those very people who had given birth to this rule. It is said that in Kashmir the mass population of Hindus after becoming

converted to Islam carried with them and continued to follow certain customs which they followed as Hindus. I am afraid this is not the correct

approach to this problem.

In the first place the customs prevalent amongst the Muslims of Kashmir are not all based on Hindu Laws. For instance the Muslims of the

valley generally recognize the custom of adoption but this custom of adopting a son who is called a Pissar Parwardha is entirely different from

adoption among Hindus. The customary adoptee is not transplanted in the family of the adopter. He has no right of collateral succession so on and

so forth. He can inherit only to his adopting father. The ceremonies also connected with this customary adoption are entirely different from those of

Hindu Law.

Secondly it is not necessary that when a certain rule is based on the analogy of laws peculiar to a particular community, any change in that law

should automatically bring in a change in the law as adopted by the members of the other community. The change should be examined on its merits

and in its entire background.

Apart from this, the custom of a Muslim widow inheriting the estate of her deceased husband for her lifetime or till her re-marriage, is in my

opinion not so much based on the Hindu Law, which had a similar provision but because It had and has a strong economic back-ground. If this

custom was borrowed from Hindu Law alone then Srinagar Mussalmans also should have followed this custom. This custom as illustrated earlier

was followed and adopted by those sections of the Muslim population who mainly lived on agriculture and those parts of the population who

followed other occupation like Srinagar Mussalmans and Sayeds and Pirs etc. did not follow or adopt this custom.

Under the pure Mohammadan Law on the death of a Mohammadan, his property devolves on various people - sharers, residuaries and distant

kindred. If there are sharers, first their shares have to be met and if anything is left, then that goes to residuaries, if any. If the estate is not sufficient

for the sharers, the share of each of the heirs has to be curtailed by applying the doctrine of increase and if there is surplus it has to be given to

them proportionately by the doctrine of return. If there are no sharers and residuaries then distant kindred, who are of four classes, inherit the

property. The result is that on the death of a Mussalman, fragmentation of his property takes place. To avoid this very fragmentation which if

applied to lands would diminish their value by being reduced to pieces falling to the share of different people, residing at different places with

different pursuits in life, this custom has been adopted by the Muslims of the Valley. The principle behind it is to maintain the agricultural economy

of the State, agriculture being even today the main source of livelihood for the people of the Valley. I am strengthened in my view by the following

fact. u/s 67 of the J. & K. Tenancy Act, 1980 the right of occupancy is inherited first by the male lineal descendants of the deceased as occupancy

tenants; failing such male lineal descendants the right of tenancy is inherited by his widow but this right of the widow is restricted by the proviso to

this very section in the following words:-

Provided that, such widow has not remarried, and further that the right of a female succeeding to a right of occupancy under this clause shall be

extinguished when she dies or remarries or abandons the land............

The same law is applicable, to protected tenants u/s 68-A of the J. & K. Tenancy Act, 1980.

This provision of the law shows that this rule of inheritance has been incorporated in and recognized by an Act of Legislature itself. The

purpose behind it is simple, as already stated, to save the land from fragmentation and allow it to remain with the widow till she lives in that house

and on her remarriage the presumption is that she may go to some other family or village, therefore she is to lose the right in the land inherited by

her as a tenant. To achieve this very object custom permits a sonless Muslim land holder to adopt a son who is called a Pissar Parwardha; entitles

a daughter to inherit only if she is made a Dukhtar Khana Nishin (a resident daughter) in the absence of children makes the widow the owner of the

property till her lifetime or remarriage whichever is earlier, so on and so forth. All these are not customs without a purpose but they have a deep

significance and have considerable influence on the economy of the villagers. So long as the legislature, through elected representatives of the

people do not enact any law which makes the personal law of the parties the rule of succession. I think these customs should be respected and

adhered to.

In my opinion the case has been rightly decided by the Courts below, and this appeal should be dismissed with costs.

Syed Murtaza Fazl Ali, C.J.

I agree.

Jaswant Singh, J.

I agree.

Mian Jalal-Ud-Din, J.

I have read with advantage the learned and lucid judgment written by my learned brother Bhat, J. For a while I entertained the idea and was of

the opinion that the question relating to the existence of custom under which a widow gets only life interest in the property of her deceased husband

till death or remarriage offended the provisions of Articles 13 and 15 of the Constitution of India, and was also unreasonable as it was repugnant to

the concept of equity and good conscience. However, on a more careful consideration of the matter I had to change my opinion. The question that

has been referred to the Full Bench is whether there is such a custom among the Muslims of Kashmir in general according to which a widow gets

only life interest in the property after the death of her husband, and if so whether such a custom is reasonable and does not offend any of the

provisions of fine Constitution so as to be declared void.

Appearing for the appellant L. Sunder Lal has argued that u/s 4 of the Jammu and Kashmir Consolidation of Laws Act it is the personal law

that is applicable to parties in matter relating to succession, marriage etc. unless the personal law is modified by custom which is not unreasonable

as opposed to the concept of equity and good conscience, and has not been repealed by an Act of Legislature, or has been declared void by any

competent court. It is argued that custom according to which a widow gets life interest in the property of her deceased husband is unknown to

Muslims Law. This Custom was borrowed by Muslims from Hindus and Muslim retained this custom even after their mass conversion to Islam.

The State, however, realising the unreasonableness of this custom in the Hindu society came to its aid and enacted legislation by way of Hindu

Succession Act which abrogated this custom and which made the position of Hindu females secure in matters relating to succession and in fact

equated females with males. The discrimination between males and females was done away with. Therefore it is argued, that when the very

foundation of this custom was gone retention of such a custom by Muslims in the valley would be unreasonable and not consistent with the spirit of

the Constitution. Such a custom among Muslims clearly discriminates between females and males on the ground of sex. Under this custom a widow

gets only a shadow of the property of her husband and not substance. She has got no power of disposition over the property and after her death it

is to revert to the nearest collaterals of her deceased husband.

Mr. Malik's contention on the other hand is that there is no warrant for the proposition that the impugned custom which has stood the test of

times even before 1956 B. K. up-till now has all of sudden become unreasonable and inconsistent with the established notions of equity and good

conscience. The mere fact that this custom has ceased to have force of law among the members of a different community after the promulgation of

the Hindu Succession Act would not by itself render it defunct and make it inapplicable to the Muslims of the Valley unless legislation to abrogate it

was passed by the State. Moreover there is some rationale behind this custom and it cannot be termed unreasonable because it is an inroad on the

personal law.

That there is such a custom generally prevalent among the Muslims of the valley is not indeed disputed before us. Not only the Code of Tribal

Customs by Sant Ram Dogra but even the judicial pronouncements of the highest forum in the State have put their seal in favour of the existence of

such a custom. It is not therefore necessary to cite the various authorities that uphold this, view.

The only question which is indeed the crux of the matter and which we are called upon to consider is whether the existence of such a custom is

repugnant to the concept of reasonableness, equity and good conscience and also violates any of the provisions of the Constitution. It is true that

this custom was borrowed by the Muslims of the valley from the Hindus. This legacy was retained even after they became converts to Islam.

Among the Hindus this custom having the force of law has been abrogated by the passing of the Hindu Succession Act. But this is no argument to

suggest that because the Hindus of the valley have discarded this custom, therefore it should cease to have any force in the case of Muslims of the

valley. To appreciate the reasonableness of such a custom we have to see as to what is its intrinsic merit. Surely if this custom is found not based

on any intelligible doctrine or rational concept or is found opposed to public policy, good conscience and equity this court will not have the slightest

hesitation in declaring it as void. This custom, it appears, was generally retained by various tribes in the valley, of course with some exceptions here

and there to preserve vested family interests with all its incidence in the rural economy. It was in the interest of maintaining unity in the family and to

avoid fragmentation of the landed property of the deceased villagers that such a custom was recognised and respected from old times. But by this

custom the position of a widow does not become precarious in the sense that she gets only shadow and no substance in the estate of her deceased

husband. The widow does exercise control over the said property. She can enjoy the usufruct of the same till her death. She can alienate the

property by way of sale or mortgage for legal necessity and the collaterals of the deceased cannot question this right of the widow. She can

transfer her rights only in favour of her daughters, adopted sons or Khanadamads (vide answer to Question No. 55 of Book on Tribal Customs by

Sant Ram Dogra),

In my opinion such a custom cannot be said to be unreasonable or repugnant to the concept of good conscience and equity. Nor can the

impugned custom be said to be violative of Art. 13 (a) of the Constitution. It is true that the definition of law as contained in Art. 13 (iii) (a) of the

Constitution of India includes in itself a custom having the force of law and that if such a custom militates against the fundamental rights guaranted

under the Constitution or discriminates against females merely on the ground of sex then such a custom can be declared violative of Art. 15 of the

Constitution. The argument of discrimination is not available to the appellants in the present case because the custom itself is not based on

discrimination. The argument of discrimination based on sex does not appear to be plausible because if this argument is to be accepted then the

very foundation on which the chapter of inheritance in Muslim Law and the other Codes of Laws relating to inheritance of other communities is

based would be open to question. In such a case a uniform Code of laws relating to all matters covering all castes, creeds and communities will

have to be advocated for.

A similar question arose before a Division Bench of the Punjab High Court reported in Gurdial Kaur Vs. Mangal Singh, in which their

Lordships were pleased to observe as follows:-

Article 13 (2) of the Constitution prohibits only the State from making any laws which take away or abridge the rights conferred by Part III of the

Constitution. Mr. Sharma submitted that though the law based on the custom in question has not been made by the State, judiciary is a part of the

State according to the decision of the Supreme Court in Jayantilal Amrit Lal Shodhan Vs. F.N. Rana and Others, and that, therefore, the judgment

of the learned District Judge is liable to be set aside as it has given effect to a law which contravenes Article 15. This argument is wholly fallacious

as the definition of ""the State"" in Article 12 of the Constitution does not include a Court of law. If the argument of discrimination based on caste or

race could be valid, it would be impossible to have different personal laws in this country, and the court will have to go to the length of holding that

only one uniform Code of laws relating to all matters covering all castes, creeds and communities can be constitutional. To suggest such an

argument is to reject it. Nor is there anything in the alleged discrimination on the ground of sex because rights of succession varying between

different heirs belonging to different sexes have to be determined according to the personal law or the usages by which a party is governed and it is

too much to suggest that all heirs belonging to any sex must have the rights of inheritance. We have, therefore, no hesitation in rejecting this

ingenious argument of Mr. Sharma and in holding that the usage in question does not infringe Art. 15 of the Constitution.

For the foregoing reasons I am of the view that the answer to the question should be that the custom is not repugnant to the concept of equity

and good conscience and does not offend either Art. 13 or 15 of the Constitution of India.

However, it cannot be denied that the custom relating to widow's estate, among the village folk of the valley, is not uniform. In the very Book

on Tribal Custom by Sant Ram Dogra exceptions have been recorded where the village folk of Chharat and Sunnis of Shopian, Towns people of

Sopore, all Mussalman tribes of Khannabal, Srinagar Bahats Dunga Hanz of Baramulla, Pirs,, Babas and Sayeds of Badgam and Shias of Badgam

and Nunar follow personal law in this matter. Even Gujjars of Handwara, Badgam and Nunar and Bakarwals of Nunar observe different customs

in so far as the power of disposition of a widow is concerned. A large majority of Shias in the valley who also constitute a large section of the

population of village folk also do not subscribe to this custom. Again, the spirit of times has changed. The society being dynamic, old customs need

to be replaced by reformed legislation with the object of achieving uniformity and equality in matters relating to succession. There are some

institutions in the valley which though cannot be termed as unreasonable in legal terminology still look abnoxious and repugnant to the ordinary

concept of equality, e. g. in the valley there is a custom that only Khana Nishin daughters can inherit the property of their deceased father. If a

Zamindar dies and he is survived by a widow and daughters among whom only one daughter is a Khana Nishin, then according to custom it is the

Khana Nighin daughter alone who under custom can inherit her deceased father to the exclusion of the widow and the other daughters married

outside. This custom which has the effect of depriving the other daughters from inheritance appears to be unjust and is fraught with many vices. It

deprives the legitimate heirs of the deceased zamindar without any fault of their's who but for such custom would succeed under the personal law.

It is to be remembered that the legacy of these customs has been borrowed from the members of the Hindu Community who themselves have

discarded them, and with a view to eradicate the evil consequences that flow from them have passed an enactment which does substantial justice

between males and females and even between females interse. It will, therefore. be appropriate and in the fitness of things and in keeping with the

spirit of times that legislation comes to the aid of Muslim Zamindars of the valley and pass an enactment according to which these customs are

abrogated and personal law restored.

With these observations, the reference is otherwise disposed of.

Order accordingly.