1. This Letters Patent Appeal is directed against the judgment and decree passed by learned Single Bench of this Court in CIMA No.45/2000 titled as Hassan Bhat vs. Mst. Rahti on 10th June 2005.

2. It is necessary to give the flash back of the case, the womb of which has given birth to the present LPA.

3. One Habib Bhat, resident of Kounsar Mulla died in the year 1976 leaving behind Mst. Rahti and Hassan Bhat. Mst. Rahti, who shall be hereinafter referred to as plaintiff, was constrained to file a suit. The plaintiff claimed that she is the Khana-Nishin daughter of Habib Bhat and their family is governed by the custom under which Khana Nishin daughter inherits like a son. Accordingly, the plaintiff prayed that both, plaintiff and defendant are entitled to inherit the property left behind by Habib Bhat, their father, in equal shares. In alternative, she has pleaded that she is entitled to fall back on personal law and to get her share in terms of Muslim Personal Law.

4. The defendant has resisted the suit on the grounds that parties are governed by custom. The plaintiff is not Khana Nishin daughter but was married as Khana Beerun daughter. The Khana Beerun daughter is not entitled to inherit. The defendant filed amended written statement and also pleaded that entire property was gifted away to him by his father Habib Bhat.

5. It appears that on 14th August 1985, the following issues were framed in the case: -

Issue No.1. Are the parties governed by custom in the matter of inheritance and can a daughter be made a ˜Khana Nashin™ under the said custom and is she entitled to inherit her father™s property like a son? OPP

Issue No.2. On proof of issue No.1 is the plaintiff Dakhtar Khana Nashin of her father and is she entitled to inherit her father™s property under custom like a son?

Issue No.3. Is the plaintiff in possession of her share of the property left by her father? OPP

Issue No.4. Are the parties governed by a custom whereby a daughter married outside her father™s house Beroon Khana Dukhtar™ excluded from inheriting her father™s property? OPD

Issue No.5. On proof of issue No.4 is the plaintiff under custom excluded from inheriting her father as a daughter? OPD

Issue No.6. Is the suit bad for non-joinder of the heirs of Fazi daughter of Habib Bhat? OPD

Issue No.7. Is the plaint not signed by the plaintiff and cannot be aid to have been instituted under law? OPD

Issue No.8. Is the suit liable to be amended for not being properly valued? OPD

Issue No.9. Is the plaintiff estopped and bared to plead a case which is contrary to the one pleaded by her before Dy. Commissioner is an appeal? OPD

Issue No.10. Relief

6. The learned Additional District Judge, Srinagar framed the following additional issue as issue No.11 in the case: -

Addl. Issue No.11: Whether in the year 1993 deceased Habib Bhat had made Hibba in favour of the defendant regarding his entire estate including the suit land which was accepted by the latter and possession was delivered to him as its full-fledged owner? OPD

7. The parties have lead evidence and after hearing the learned counsel for the parties, the learned Additional District Judge, Srinagar passed the judgment and decree dated 8th June 2000 and held as under: -

From the issue-wise finding returned hereinabove it is clear that the plaintiff has established her case for inheriting her deceased father to the extent of 1/3rd of the property left behind by her father. This has been proved by the plaintiff on the basis of the Personal Law of Inheritance. Plaintiff has failed to prove herself to be a ˜Khana Nashin™ daughter. The plaintiff is in view of the issue-wise finding returned hereinabove entitled to inherit her father to the extent of 1/3rd of the property left behind by her father.

8. The appellant/defendant preferred appeal against the said judgment and decree. During the pendency of the appeal, the learned Single Bench of this Court directed the trial court to return finding on the additional issue No.11. The learned A

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