Mst. Khatji vs Mst. Mukhti and Others

S. Murtaza Fazl Ali, J.—This is a Plaintiff's second appeal and arises out of a suit for possession filed by her before the trial Court. The

Plaintiff's case was that the parties are governed by custom in matters of succession and that she being a Khanna Nishin daughter of Ramzan

Khandey was entitled to 1/6th share of the land in dispute measuring 19 Kanals and 10 Marlas comprised in Khewat No. 48 in Tehsil Pulwamma.

The Plaintiff thus claimed the entire share of her father Ramzan Khandey.

The suit was resisted by the Defendants on the ground that she was not a ""Khanna Nishin"" daughter and there was a custom under which a

daughter could inherit only if she was a Khanna Nishin daughter and not otherwise. The Defendants also pleaded that they were in possession of

the land in question for more than 12 years and had acquired title by adverse possession.

The trial Court framed two issues in this case; one relating to the question as to whether the Plaintiff was a Khanna Nishin daughter and the

second one relating to adverse possession. Both the courts below have held that as the Plaintiff has not been proved to be Khanna Nishin daughter

she had no title to the property and was not entitled to a decree. No finding at all on the question of adverse possession has been given by any of

the courts below.

Learned Counsel for the Appellant has contended before us that even if the Plaintiff failed to establish that she was a Khanna Nishin daughter, she

could still fall back upon her status of a daughter simpliciter under the Mohamadan Law and in that case also she is entitled to the entire property

as a residuary in preference to the Defendants. The courts below seem to have negatived this contention on the ground that once the Plaintiff failed

to establish that she was a Khanna Nishin daughter, she could not fall back upon her rights under the personal law.

In our opinion the courts below have taken an erroneous view of law in rejecting the contention of the Appellant that she was not entitled to fall

back upon her rights under the personal law. The courts below apparently relied on the fact that there is a well established custom prevailing in the

Kashmir Valley amongst Mohamadans by which the daughters are excluded from inheritance except when they are Khanna Nishin daughters. This

view is obviously based on answer to Q. 58 of Sant Ram Dogra's book. The learned Counsel for the Respondent supported the reasonings of the

courts below and also relied on some decisions of this Court. First of all reliance was placed on a decision of this Court reported in 4 J& K LR

257 in which Chief justice Ganga Nath and Justice Masud Hasan observed as follows:

They claim as Khanna Nishin daughters and also plead that if they are not proved to be Khanna Nishin they must be given a share under the

Mohammadan Law. By pleading that they were Khanna Nishin daughters they must be presumed to admit that a custom with regard to Khanna

Nishin daughters inheriting property prevails in the family. If such a custom prevails then there is no question of their getting any thing if they are not

proved to be Khanna Nishin daughters.

To the same effect is a decision of the Division Bench of this Court reported in 4 & K LR 254 where it has been held:

The rule about Khanna Nishin daughter as given in Sant Ram Dogra's Customary Law is as follows:

Daughters inherit only when they reside with their husbands in their father's home, and are made Dukhtari-Khanna-Nishin, otherwise not.

This rule by itself shows that the daughter can be made Khanna Nishin only when she resides with her husband in her father's home. It implies that

she would be Khanna Nishin only when she and her husband live with her father in his home.

We have perused these decisions and we are clearly of the opinion that these decisions cannot be said to be good law in view of the clear

pronouncement of the Board of Judicial Advisers in S.A. No. 7 of 1948, Lassi Ganai v. Reshi Mir 8 J & K LR 117, where the Board has held

that the custom that the daughters are completely excluded from inheritance cannot be said to have been well established. Their Lordships in that

case noticed the answer to Q. 58 of Sant Ram Dogra's Book and pointed out that even on a plain interpretation of the answer given by Mr. Dogra

it could not lead to an irresistible inference that even if a daughter fails to prove that she was a Khanna Nishin daughter, she is completely excluded

from inheriting her father's property even under the Personal Law. Their Lordships further held that such a custom cannot be said to have been well

established so as to enable the Courts to take judicial notice of it, but was a custom which has to be pleaded and proved by cogent evidence. In

this connection their Lordships observed as follows:

Learned advocate for the Defendant Respondents relied on the answer to question No. 58 in Mr. Sant Ram Dogra's book on Custom. The

question and the answer thereto run thus:

Question 58. In what circumstances are daughters entitled to inherit?

Answer: Daughters inherit only when they reside with their husbands, in their father's homo and are made Dukhtar-i-Khanna Nishin, otherwise not.

It is contended that the word ""only"" and ""otherwise not"" imply that a daughter who was not a Khanna 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 daughters is in question. Evidence in proof of a custom in derogation of personal law should be

unambiguous.

In fact, u/s 4 of Jammu and Kashmir Consolidation Act, the presumption is that in matters of inheritance, the parties are governed by their personal

law and a custom which exists in derogation of such law should be strictly proved and cannot be presumed. This was laid down in Mst. Sadroo v.

Beli Ram as early as 2 J&K LR 311, by a Division Bench of this Court where it has been held:

Where a Plaintiff pleads custom and bases his claim on it, it is incumbent upon him to prove that custom by clear and reliable evidence. There is no

presumption in favour of custom. On the other hand as is specifically laid down in Section 4 of the Jammu and Kashmir Consolidation Act, the

presumption in matters of inheritance is in favour of the personal law that is to say, the parties will, be presumed to be governed by personal law

unless they prove that they are governed by custom and that custom abrogates their personal law.

In these circumstances, therefore, it will be difficult to accept the contention that merely because of the answer to Q. 58 in Sant Ram Dogra's

Book, it should be presumed that there was a general custom in the Kashmir valley under which the daughters are completely excluded from

inheritance. It is certainly open to a party to plead a particular family custom under which the daughters can inherit only if they are Khanna Nishin

daughters and are positively excluded from inheritance if they do not possess that status; but such a custom has to be proved by independent

evidence and cannot be presumed merely on the basis of the answer given by Mr. Dogra in his book.

The answer to Q. No. 58 given by Mr. Dogra in his book is as follows:

Daughters inherit only when they reside with their husband in their father's home, and are made Dukhtar-in-Khan-Nishin, otherwise not.

A plain interpretation of the words used by Mr. Dogra clearly shows that he was dealing with the positive aspect of the matter that is to say what

would be the position of a Khanna Nishin daughter in matters of inheritance. It seems to us that the word ""otherwise"" was meant to indicate that a

daughter will inherit the entire property instead of her legal share under the Mohammadan Law if she possesses the status of a Dukhtar-in-Khanna-

Nishin and in such a case she may inherit to the exclusion of other sisters if any.

The stress appears to have been laid by Mr. Dogra on what and to what extent Dukhtar-in-Khanna-Nishin inherits rather than on the event of her

not inheriting at all if she is not a resident daughter. For instance, if a person dies leaving three daughters one of whom is a Dukhtar-in-Khanna-

Nishin, she will inherit the entire property to the exclusion of other daughters and thus to the extent and to this extent alone there is a partial

modification of the Personal Law enlarging the share of a Khanna Nishin daughter which she would otherwise inherit under the Personal Law. But

this is quite different from saying that where a daughter is the sole heir of her father, she is completely excluded from inheritance unless she

possesses the status of a Khanna Nishin daughter and such a general custom cannot be said to have been so well established as to be presumed to

exist in the Kashmir valley, but has to be alleged and proved like any other fact. By reading the answer as a whole, we feel that Mr. Dogra only

referred to the rights of a Dukhtar-in-Khanna Nishin as will be clear if we refer to the answer given by Mr. Dogra to Question No. 49 in his book

on Custom which is as follows:

If a widow with a daughter survives the deceased husband, the whole of the property will devolve upon the daughter, if she is kept at home with

her husband (Dukhtar-in-Khanna Nishin with Khanadamad). The widow can get only dower on its demand. If a widow survives with the brOrs. of

the deceased or their descendants, the uncle or their descendants or great uncles or their descendants, the widow, inherits only life-interest in the

estate till remarriage. After death of such a widow, the heritage goes to the deceased husband's agnates.

This clearly shows the rights of a Dukhtar-in-Khanna Nishin vis-a-vis a widow, if the father leaves one. Mr. Dogra has not at all given any answer

to the question whether a daughter simpliciter under the Mohammadan Law could inherit or not. In absence of such an answer, it must be

presumed that if a woman does not possess the status of a Khanna Nishin daughter, she can still fall back upon her personal law unless there was a

custom to the contrary. It is also well settled that where a particular custom is set up, it overrules the personal law only in so far as such custom

covers the ground. In other words custom supersedes ordinary law in so far it is prove and everything beyond that must be decided by the

personal law. Thus for instance, if there is a custom that if a daughter is Khanna Nishin, she can inherit the entire property of her father, it cannot be

projected by a process of reasoning to include a custom by which a daughter is completely debarred from inheritance if she does not possess the

status of a Khanna Nishin daughter. In The State of Bombay Vs. Nilkanth Shripad Bhave and Another, , the Board made the following

observations:

It is well settled that a custom supersedes the personal law so far as it is established but as regards matters outside such established custom, the

personal law must prevail vide Ramanandan Singh v. Janki Koer ILR Cal 828 (PC)

We might further observe that the Board in 8 K LR 117 noticed the observations made by a Division Bench of this Court in 4 J & K LR 25 and

disapproved then and made the following observation:

It was contended in the High Court that even if the Plaintiff be not regarded as a Dukhtar Khanna Nishin she would nevertheless be entitled to a

share in the property left by her father or mother under Mohammadan Law. The learned Judges did not entertain that argument on a reasoning

which does not appeal to the Board. The learned Judges observed: 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

Defendant and the Plaintiff fails to prove the existence of the custom that the Plaintiff would be entitled to succeed under the Mohammadan Law

because no custom governing succession has been admitted or established by the parties and in the absence of any custom governing succession it

is the personal law which would apply....

The Board have felt considerable difficulty in interpreting this part of the judgment of the learned Judges but apparently they were of opinion, as

was held by the District Judge, that since the parties admitted that they were subject to customary law, the Plaintiff could not base any claim under

her personal law. This is a completely mistaken notion. When it is said in regard to a certain controversy relating to inheritance that parties are

governed by custom it cannot be understood to imply that customary law applicable to the family is a complete code of the rules of inheritance to

the total exclusion of the personal law....

None of the courts below has approached this question from a correct standpoint. They seem to have been of the opinion that the Plaintiff could

succeed as a Dukhtar Khanna Nishin or not at all. This is by no means correct. If she failed to establish a custom under which she claimed, as a

Dukhtar Khanna Nishin nominated by her mother, she is entitled to fall back on Mohammadan Law and claim a share to which that Law entitles

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.

The observations in the aforesaid case, therefore, clearly disapprove the law laid down by a Division Bench of this Court in cases reported in 4 J&

K LR 254 4 J&K LR 257. In our opinion, these two cases must be deemed to have been overruled by the Board and for very good reasons as

indicated by us.

Reliance was also placed on a later decision of a Division Bench of this Court reported in Mt. Shaft v. Mt. Fatima AIR 1953 J &K 30 where a

Division Bench of this Court observed as follows:

In Kashmir Province the law of succession amongst agriculturist classes has been greatly modified by custom. According to the custom prevalent

generally in Kashmir Province ""Daughters inherit only when they reside with their husbands in their father's house and are made Dukhtar Khana

Nashin otherwise not (vide Code of Tribal Customs by Sant Ram Dogra). This custom has been recognised by courts, so far as Kashmir Province

is concerned all along. If in Kashmir Province a daughter failed to prove herself that she was a resident daughter, she would fail to get any share in

the property left by her father since she would succeed only if she were made a Khana Nashin daughter according to the custom just referred to.

But as already stated, no such custom has been proved to exist in Kishtwar as Obtains in Kashmir whereby daughters are excluded from

inheritance unless they are made Khana Nashin daughters.

In the first place, it was not necessary for their Lordships in that case to have considered this question because the case before their Lordships

was not from Kashmir Province but from Kishtwar in Jammu Province. Secondly, their Lordships came to a finding of fact that a custom by which

a Khanna Nishin daughter could alone inherit did not prevail in Kishtwar and that a daughter in that case could fall back upon her personal law and

claim interest in the property on that ground. Their Lordships also noticed the decision of the Board referred to above and in fact followed it. In

these circumstances, the observations made in the above mentioned case and purely in the nature of obiter dictum and for the reasons given by us

stand disapproved by a decision of the Board.

An identical question was considered by one of us, my brother Justice Nair sitting singly in Mst. Khatooni v. Lassa AIR 1959 J & K 52, where his

Lordship made the following observations:

To say that a Dukhtar Khana Nashin in the absence of a male issue of her father is entitled to the entire property to the exclusion of her sister is

quite distinct and different from saying that even if no daughter has been appointed as Dukhtar Khana Nashin and even if there is no male issue of

the father none of the daughters can take a share in the father's property by inheritance. But the Respondents claim that the Customary Law is to

that effect. I have not been satisfied that this custom is so well established as to have acquired the force of law. It may be that in a given case such

a custom will have to be specifically pleaded and established by appropriate evidence. Such a drastic custom which seriously derogates from the

personal law of the parties cannot be lightly inferred or held to exist.

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 as follows:

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 answer 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 answer 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 1/6th of the share in the

property in question as a residuary under her personal law.

It was, however, contended by the learned Counsel for the Respondents that the Plaintiff has not made a clear prayer in her plaint that she

should be given a decree on the basis of personal law. Giving a liberal construction to Para No, I of the plaint we feel, however, that the prayer for

a decree on the basis of personal law is implicit in it. In this part of the Plaintiff's pleadings, she has clearly mentioned the words: ""....

which includes the relief of granting a decree on the basis of personal law. In any event, the courts can always allow the Plaintiff to amend the plaint

in order to give a relief which is impliedly asked by the Plaintiff and which does not alter the nature of the suit.

It was lastly contended by the learned Counsel for the Respondents that even if it be held that the Plaintiff was entitled to fall back upon her

personal law, as the Defendants have specifically pleaded a family custom in para 2 of their written statement under which a daughter is excluded

from inheritance unless she is a Khanna Nishin daughter and in which case the right of inheritance reverts to the reversioners, the Defendants should

at least be given a chance to prove this part of their case.

Had the Defendants based their right only on a general custom prevailing in the valley excluding daughters from inheritance, unless she was a

Khanna Nishin daughter, the Defendants would have been out of court, because such a custom has been held by as not to be so well established

as to enable a court to take judicial notice, but as the Defendants have pleaded a specific family custom, we think that they should be given an

opportunity to prove such a custom. The proof must, however, be clear, specific and cogent. Moreover, in view of somewhat unsettled state of the

law on this point, we think that the prayer of the Defendants to prove what they have alleged in para No. 2 of their written statement cannot be

refused.

Learned Counsel for the Respondents has further submitted that the courts below have not re turned any finding on the question of adverse

possession. This contention appears to be well founded. It is, however, clear that on the allegations of the parties, the Defendants are co-sharers

and unless they establish adverse possession with a notice to oust the Plaintiff they cannot succeed on that plea. In these circumstances, it is

necessary for us to remand this case to the trial court.

For the reasons given above, the appeal is allowed, the judgment and the decrees of the courts below are set aside and the suit is remand ed to

the trial court for a fresh decision. The trial court will now frame an issue on the custom alleged by the Defendants in Para No. 2 of their written

statement namely the question as to whether there is a custom in the family of the parties by which a daughter is excluded from inheritance even

under her personal law unless she is a Khanna Nishin daughter and in such a case the inheritance reverts to the reversioners.

The trial court will give an opportunity to the parties to adduce evidence in respect of this plea. The court below will also give a finding on issue

No. 2 relating to adverse possession. Issue No. 1 which relates to the question as to whether the Plaintiff is a Khanna Nishin daughter need not be

decided and is closed in view of our finding that the Plaintiff has not proved herself to be a Khanna Nishin daughter but that she is entitled to inherit

as a daughter simpliciter under the Mohammadan Law to the extent of her share to which she is entitled unless there is a custom to the contrary.

The trial court will not allow the parties to lead further evidence on Issues Nos. 1 and 2 and should give its findings on these issues on the evidence

which is already on the record. The trial court will now decide the suit after framing an issue mentioned above in light of the observations made in

this judgment.

K.V. Gopalakrishnan Nair, J.

I agree.