The central legal point established in the judgment is the requirement for clear and unambiguous evidence to prove customs, as well as the limitations on superseding personal law with custom under the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977.

The question that has been referred to the Full Bench for decision is: What would be the status of a girl for whom a husband has been brought into the family by her mother in pursuance of a direction of her deceased husband, i. e. whether such a daughter is entitled to the status of a khana nishin dukhtar of her deceased father.

2. The main facts giving rise to this reference are as follows :-

Jamal and Kamal were two brothers. Kamal died leaving behind him a daughter, named Mst. Saja, and Jamal was survived by his only son Ahad. On the death of Kamal his land was mutated in the name of Mst. Saja on the condition that she would hold it till her marriage. On her marriage, however, the revenue authorities effected a permanent mutation in her name for the reason that she was the khana nishin daughter of Kamal. Ahad, thereupon, instituted a possessors suit for this land on the basis that he as nephew was entitled to succeed to the property of his uncle, Kamal, in preference to Mst. Saja who was not a khana nishin dukhtar. The defendant appellant resisted the suit on the ground that she was the khana nishin dukhtar of Kamal. It was not denied that Mst. Saja had been married after the death of her father by her mother subsequent to her own re-marriage. Kamal had died when Mst. Saja was only an infant. But it was alleged by the defendant that her father had left an oral direction in pursuance of which her mother had made her a resident daughter. Two main questions arising for determination in this case were (i) whether any custom existed in the family by which a mother could after the death of her husband make her daughter a khana nishin dukhtar by importing a husband for her into the family in accordance with an oral direction of her deceased husband and (2) whether any such direction had, in fact, been left in this case by Kamal. The parties led their evidence in the case and the trial Court of the Sub-Judge, Anantnag, came to the conclusion that the custom existed in the family and that the evidence led by the defendant, showed that Kamal had made an oral direction according to which Mst. Saja had been made a resident daughter by her mother. On appeal the learned District Judge, Kashmir, reversed the judgment of the decree of the trial Court and decreed the plaintiffs suit holding that the evidence produced by the defendant to show that her father had given a direction that his daughter should be made a khana nishin dukhtar after his death was not adequate and no reliance could be placed on it and, therefore, the defendant had failed to prove that she was a khana nishin dukhtar,

3. We have heard the learned Counsel for the parties in this case and have examined the record. It appears that the learned Sub-Judge, Anantnag, in arriving at his conclusion was mainly influenced by a decision of His Highness in Mst. Khatji versus Nabir (dated I5th April, 1937) in a mutation appeal cited in the Digest of Customary Law of Kashmir by Pt. Nila Kanth Ganjoo at pages 81-82. The effect of this decision is that even a mother could be keeping her daughter in the house and bringing a husband for her into the family make her a khana nishin dukhtar. It also appears that the decisions of this Court bearing on this point had not been brought to the notice of the learned Sub-Judge. The learned District Judge has, however, in his judgment referred to a ruling of this Court reported in I, Jammu and Kashmir L. R. (1946) 254 in which it had been held that daughter can be khana nishin dukhtar only when she and her husband live with her father in his home. Having rightly accepted guidance from this ruling the learned District Judge has made a futile attempt to reconcils this ruling with the decision of His Highness in mutation proceedings, Mst. Khatji versus Nabir. I shall advert to this mutation case later.

4. It has been noticed that the subordinate Courts often fall into error in the disposal of cases in which a certain custom is a