Mst. Khatooni vs Lassa and Others

K.V. Gopalakrishnan Nair, J.—This is a second appeal against the judgment of the Addl. District Judge Srinagar who confirmed the

judgment of the First Addl. Munsiff at Srinagar. It is not necessary to state the facts of the case at any great length, because they are fully set out in

the judgment of the lower appellate court.

The Plaintiff instituted a suit in the First Addl. Munsiff's Court at Srinagar for a declaration that she is the Dukhtar Khana Nashin of her deceased

father, Qadir Bhat and is as such entitled to the property left by the deceased. The plaint proceeds on the basis that under the Customary Law

governing the parties, a Dukhtar Khana Nashin is entitled to be treated as a son for purposes of inheritance, and that as the Plaintiffs father died

without any male issue surviving him, the Plaintiff as Dukhtar Khana Nashin is entitled to inherit the entire property left by the deceased.

The Defendants who are the agnates of the Plaintiff's deceased father threatened to take possession of the property left by her deceased father,

and therefore the Plaintiff instituted the suit for declaration. The Defendants contended that the Plaintiff was not a Dukhtar Khana Nashin, that she

was not in possession of the property in suit, that she was not entitled to the declaration prayed for and that her suit was not maintainable u/s 42 of

the Specific Relief Act. The trial court found against the Plaintiff and dismissed the suit. On appeal, the District Court confirmed the findings of the

trial court. The Plaintiff has, therefore, come up to this Court in second appeal.

learned Counsel for the Plaintiff strenuously argued that the finding of the first appellate court as well as of the trial court that the Plaintiff is not

Dukhtar Khana Nashin is erroneous. But this is purely a finding of fact. It is not open to the Plaintiff - Appellant to canvass such a concurrent

finding of fact in second appeal. It follows that the concurrent finding of fact must stand.

The next contention urged by the Plaintiff's learned Counsel is that Plaintiff must be held to be entitled to her share under the Mohammedan

Law, in her father's property. This plea was vehemently opposed by the Respondents' learned Counsel on the ground that no such alternative case

was set up in the plaint. No doubt, the Plaintiff has generally prayed for such other relief as may be granted to her by the court.

The Appellant's counsel said that this prayer in the plaint is sufficient to justify this Court to grant relief in respect of the suit property under the

Mohammadan Law. I do not find it easy to accede to the Appellant's argument. In the first place, such an important prayer should have been

specifically made in the plaint and must not have been left to be read into the general residuary relief asked for.

Secondly, the claim of the Plaintiff in respect of her share under the Mohammedan Law would necessitate impleading. of the other heirs under the

Mohammedan Law. The Plaintiff has admittedly a sister who has not been impleaded in the suit. This to my mind is a serious omission and is

inconsistent with the Plaintiff's plea in second appeal that she conceived the general residuary prayer in the plaint as comprehending a prayer in

respect of her share under the Mohammedan Law.

The Respondents have raised another objection. According to them the Customary Law governing the parties excludes every daughter other

than a Dukhtar Khana Nashin from inheriting her father's property. The Respondent's learned Counsel tried to show that the existence of such a

custom which has the force of law is admitted in the plaint itself. But I am not satisfied it is so.

No doubt the Plaintiff claimed the entire property of her deceased father on the ground that she is a Dukhtar Khana Nashin. She therefore

deliberately excluded her sister from the array of Defendants. But I find it extremely difficult to say that the averments in the plaint go to show that

even in the absence of a Dukhtar Khana Nashin no daughter of a Mohammedan father can inherit his property.

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 in inheritance.

But the Respondents claim that the Customary Law is to that effect. I have not been satisfied that is custom is so well - established as to have

acquired the force of law. It may be that in a given se such a custom will have to be specifically (sic)aded and established by appropriate evidence.

Such a drastic custom which seriously derogates custom the personal law of the parties cannot be rightly inferred or held to exist.

The observations of the Board of Judicial Advisers in Lassi Ganai v. Reshi Mir 89 J&K LR 7 at pp. 123 and 125, are apposite in this cont. Those

observations threw some doubt on the correctness and completeness of Sant Ram Dogra's answer to Question No: 58 in his book the Code

Tribal Customs. The Board were also inclined the view that such a custom ought to be established by evidence.

My attention was drawn by the Respondents learned Counsel to a decision of this Court reported Mt. Safia v. Mt. Fatima AIR 1953 J&K 39

which relies on a passage from another decision of Court in Mt. Zebi v. Reeha Mir 4 J&K LR But the very passage in 4 J&K LR 254 which is

relied on in this decision appears to have (sic) disapproved by the Board of Judicial Advisers of J&K LR 117. Furthermore the observations AIR

1953 J&K 39 in so far as they relate to point under discussion, appear to have been more or less obiter.

In view of this state of the law, I am not indeed to agree with the contention of the Respondents that the Customary Law is undoubtedly to effect

that no daughter can inherit the property of her father unless she is a Dukhtar Khana Nashin, I may not however be understood as definitely laying

down that the Customary Law is or court to the effect contended for on behalf of the Respondents. My attempt is only to indicate the difficulty in

accepting the position one way or the in the present state of the Law.

But even assuming that the Customary Law on Point is not as urged on behalf of the Respondent the Plaintiff cannot be granted relief in res(sic)of

her share under the Mohammedan Law in second appeal, because the plaint is not framed that purpose and the necessary parties for granted such

relief have not been impleaded. But the Plaintiff's learned Counsel asks that the right of the Plaintiff in respect of her share in her deceased father's

property under the Mohammedan Law may expressly left open. The Respondent's learned Counsel did not raise any serious objection to this

therefore, leave the right of the Plaintiff to her share in her deceased father's property the Mohammedan Law or to ask for a declaration in respect

of such share expressly open. The Plaintiff is free to work out her rights if any under Mohammadan Law by instituting an appropriate or the

purpose. The decision against the Plaintiff in the present litigation (which includes it and the first and the second appeals) will itself be a bar to any

such future suit by Plaintiff.

The other point urged on behalf of the Plaintiff is that she is actually in possession of the property in suit. Here again the Plaintiff is con(sic)by the

concurrent findings of fact arrived at two courts below. But then the Plaintiff's counsel stated that during the pendency of investigation, the

possession of the property has (sic)o her hands, as heir of her husband who (sic)ring the pendency of the present litigation. In this appeal we are

not concerned with this question of fact. Anyway I have referred to it only to show that such claim of possession has been urged on behalf of the

Plaintiff.

It was further pointed out on behalf of the Plaintiff that in any event she is entitled to obtain a share in the suit property as heir of her deceased

mother, who died pending the suit instituted by her. This also is a matter for the Plaintiff to pursue in appropriate future proceedings, if she be so

advised. The present litigation is not concerned with any such question.

The Plaintiff's learned Counsel attempted to show that in the circumstances of the case it was not necessary for him to pray for consequential

relief and that he is not therefore hit by Section 42 of the Specific Relief Act. His argument is that the Plaintiff's husband was at the time of the

institution of the suit in possession of the suit property as tenant under the Plaintiff's deceased mother and that, therefore, the Plaintiff must be taken

to have been really in possession.

In any event none of the Defendants was in possession and consequently the finding of the lower courts that the suit is barred by Section 42 is

erroneous. This argument overlooks the important fact that possession of the Plaintiff's husband even if true, is not tantamount to possession on the

part of the Plaintiff herself. Nor can it be asserted that the Defendants did not and do not claim even constructive possession of the suit property in

the eye of law.

According to the Defendants, the title to the property devolved on them on the death of the last holder. If the Plaintiff's deceased husband was a

tenant under the last holder he would constructively be a tenant of the Defendants, if they are really the successors - in - title to the property as

claimed by them. In this view it does not appear to be correct to say that it was not necessary for the Plaintiff to claim the consequential relief of

possession in the suit.

Therefore the finding of the lower courts based on Section 42 of the S.R. Act cannot be said to be wrong. I may however, point out that the

question whether this finding is correct or not, does not materially affect the Plaintiff's right to succeed in this second appeal. As she has failed to

prove that she is the Dukhtar Khana Nashin, she cannot succeed in the suit as framed. This was fairly Conceded by the Plaintiff's learned Counsel.

No other point falls to be dealt with in this second appeal.

The result is that this second appeal fails. The right of the Plaintiff to institute another suit or appropriate proceedings in respect of her share if

any in the suit property as an heir under the Mohnmmadan Law is expressly left open and will not be prejudiced by anything that has happened in

the present litigation.

The Appellant will pay the costs of this second appeal to the Respondents. Leave refused.