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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
S. Murtaza Fazl Ali,Jaswant Singh, JJ.
Mumtaz Begum - Appellant
Versus
S. Aman Ullah Khan & Ors. - Respondent
CIA No. 21/1970
Decided On : 10 August, 1972
PARTITION - CUSTOM - EXCLUSION OF DAUGHTERS FROM INHERITANCE - PROOF - SUCCESSION - PERSONAL LAW - EVIDENCE - SUFFICIENCY.
Fact of the Case:
Plaintiff, a daughter of Sardar Abdul Qayoom Khan, filed a suit for partition of land, claiming one-third share under a will left by her father or, alternatively, one-fourth share as a daughter under personal law. The defendant, her brother, resisted the suit, pleading a well-established custom in the family that only resident daughters could inherit, excluding those married outside the family.
Finding of the Court:
The trial court dismissed the suit, holding that the custom pleaded by the defendant was proved and that the plaintiff was excluded from inheriting her father's property. On appeal, the High Court found that the custom had not been established by clear and cogent evidence and that the plaintiff was entitled to one-fourth share in the property under personal law.
Issues: 1. Whether the custom pleaded by the defendant, excluding daughters who are not resident daughters from inheritance, was established by sufficient evidence. 2. Whether the parties were governed by personal law or by the alleged custom.
Ratio Decidendi: 1. To establish a custom in derogation of personal law, it must be ancient, invariable, certain, and continuous. 2. The evidence must show that the custom was exercised as of right and not merely by concession or agreement. 3. The mere fact that daughters were excluded from inheritance without any dispute being raised or any claim being preferred is a strong circumstance which disproves the existence of a custom so as to outweigh the written text of law. 4. In the present case, the custom pleaded by the defendant was only 36 years old and there was no evidence of any judicial recognition of the custom. 5. The evidence of the witnesses produced by the defendant showed that the daughters were excluded from inheritance without any dispute being raised or any claim being preferred, which indicated that the custom was not exercised as of right. 6. The evidence also showed that the family of the parties did not adopt the Kashmiri custom of taking resident daughters, which was the basis of the alleged custom of excluding daughters from inheritance.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the trial court, and passed a preliminary decree for partition of one-fourth share in the suit lands in favor of the plaintiff.
2. The plaintiffs case further was that her father died in the year 1931 and after his death the property was mutated in the name of the children of Sardar Abdui Qayoom Khan namely the plaintiff, her sister defdt. No. 2 and her brother delendant No. 1. Till the death of the plaintiff, mother in 1957, she used to get the profits of the property in question but the defdt. No. 1 stopped giving the profits to the plaintiff after the death of their mother in the year 1957. Hence the suit.
3. The learned Sub Judge (Judge Small Causes Court) Srinagar, who decided the suit accepted the plea taken up by the defendants and held that as the parties were governed by a custom which over-ruled the personal law the plaintiff was not entitled to any share in the property of her father and he accordingly dismissed the suit of the plaintiff.
4. On the pleadings of the parties as many as 12 issues were raised which are as follows: -
1. Whether the suit was ill-framed, therefore needed amendment. O.P.D. I.
2. Whether the suit was not cognizable by Civil Court and if so, how? O.P.D. I.
3. Whether the suit to the extent of relief for exclusive possession was not maintainable? O.P.D. I.
4. Whether the Court fee was not fixed according to law and if so, what was its effect on the suit? O.P.D.
5. Whether the suit was time barred? O.P.D.
6. Whether the suit was bad for mis-joinder of the defendants and if so, what was its effect on the suit? O.P.D.
7. Was the property of S. Qayoom Khan mutated in equal shares between pltf. and defendant Nos. 1 and 2 on the basis of his oral will ? O.P.P.
8. Had S. Qayoom Khan made a proper and valid will in regard to his properties? O.P.P.
9. If issues Nos. .7 and 8 are proved in affirmative what would be its effect on the present suit? O.P.P.
10. Is any residential house belonging to S. Qayoom Khan situate on the suit land? O.P.P.
11. Are the parties governed by the custom that a custom that a daughter who is not married as a resident daughter by her father, is excluded from inheriting to her fathers estate? O.P.D.
12. Relief.
5. Issues 1. 3, 5 and 6 were decided against the defendants and in favour of the plaintiff. Issue No. 7 which related to the existence of the will was decided against the plaintiff as no evidence was led by her to prove the same. Issues 8 and 9 which also related to the will were decided against the plaintiff. Issue 10 which related to the title of the plaintiff to the residential house constructed in the o
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