Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Hakim Imtiyaz Hussain, J.
Syed Begum - Appellant
Versus
Zulafkar Ahmed & Anr. - Respondent
CSA No. 28/1999
Decided On : 10 November, 2006
Will - Property Dispute - Jammu and Kashmir Agrarian Reforms Act, 1976, Section 31 - The court discussed the validity of a will deed in light of the provisions of the Jammu and Kashmir Agrarian Reforms Act, 1976, particularly Section 31, which restricted alienation of land. The court held that the will deed, being in contravention of the Act, was void ab initio and not subject to the limitation period. The court emphasized that a document void ab initio cannot be validated by the failure of a party to challenge it within a particular time.
Fact of the Case:
The appellant filed a suit for declaration and joint possession of land, claiming that a will deed executed by her father in favor of the respondents was void under the Jammu and Kashmir Agrarian Reforms Act, 1976. The trial court dismissed the suit as time-barred, and the District Judge upheld the decision.
Finding of the Court:
The court found that the suit was not barred by limitation as the will deed, being void ab initio under the Agrarian Reforms Act, was not subject to the limitation period. The court set aside the judgments of the lower courts and ordered a rehearing on other issues.
Issues: The main issue was whether the suit was barred by limitation due to the challenge of the will deed. The court also considered the question of joint possession by a co-sharer and the accrual of the cause of action for filing the suit.
Ratio Decidendi: The court held that a document void ab initio, such as the will deed in question, cannot be validated by the failure of a party to challenge it within a particular time. Therefore, the suit was not barred by limitation.
Final Decision: The court allowed the appeal, set aside the judgments of the lower courts, and ordered a rehearing on other issues.
2. The brief facts relevant for the disposal of the present appeal are as under:--
"Hussan Mohd, father of appellant-Syed Begum and Sallah Mohd, father of respondent No. 2, Wazir Hussain were real brothers being the sons of one Ghulam Mohd of village Danoor Gursainh District Rajouri. They had 164 and 4 marlas of landed property situated under survey Nos. 74, 75, 76, 77 and 67 at village Danoor Gursainh, and khasra Nos. 127, 90, 91, 85 and 87 situated at village Danoor Jaralanh and survey Nos. 243, 244, 246 and 250 situated at village Rampur Rajouri.
3. Hussan Mohd had two wives. From the first wife, he got three daughter, namely, Gul Begum, Gundu Begum and Shahida Begum while as from the second wife namely, Mst. Hidayat Bibi, he had two daughters, Syed Begum (appellant) and Iqbal Begum. Hussan Mohd died in the year 1979. The present appellant filed a suit for declaration and joint possession before the Court of District Judge, Rajouri against Zulafkar Ahmed S/o Wazir Hussain and Wazir Hussain S/o Sallah Mohd. The case was transferred to the Court of Sub Judge Rajouri for disposal. The appellants case before the trial court was that she all along resided with her father and was in actual physical possession of his lands and used to cultivate the same on his behalf. She and her husband were thus in possession of the suit land. The appellant further stated that a part of the suit land was grabbed by respondent No. 2, namely, Wazir Hussain after the death of her mother in the year 1983. The appellant further stated that the respondents with the help of Revenue officials managed illegal mutations of inheritance regarding the land left by her father and that all these mutations were challenged by her in the appropriate forums. She further stated that the respondents had forged a deed of Will dated Ist of March 1975 by means of which the whole land left by her father and held by him as owner or an occupancy tenant has been shown to have been bequeathed in favour of defendant No. 1 and his brother Mohd Iqbal. The document, according to the appellant, was forged by Wazir Hussain in the name of father of the appellant and in favour of his sons and thus himself became the actual beneficiary. The appellants further case was that the Will so executed was expressly barred under the provisions of Jammu and Kashmir Agrarian Reforms Act, as then in force. She prayed for a decree for declaration to the effect that the said deed of the Will allegedly made by Hussan Mohd in favour of the respondents was null and void and ineffective on the rights of the plaintiff. She further prayed for joint possession of the suit land by her with respondent No.2.
4. The respondents resisted the suit of the appellant on the ground that the respondents have got the land left by Hussan Mohd under a deed of Will executed by Hussan Mohd in their favour. They further stated that the appellants suit was barred by limitation as she challenged the Will after a lapse of more than 11 years after the death of her father. The respondents further pleaded that there was a custom prevailing in the village as well as in Tehsil of Rajouri from the time immemorial that in case a Mohammedan agriculturist dies, his married daughters do not inherit the property of their father. The respondents denied that the Will executed by Hussan Mohd was in any way hit by the provisions of Jammu and Kashmir Agrarian Reforms Act, 1976, as according to them, there was no legal bar for a Mohammedan to execute a Will of his property.
5. The trial court framed various issues in the case. One of the issues framed was on the limitation
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
