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2005 Supreme(J&K) 180
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Hakim Imtiyaz Hussain, J.
Hassan Bhat - Appellant
Versus
Rehati - Respondent
CIMA No. 45/2000
Decided On : 10 June, 2005
Advocate For Appellant: R.M. Sultan
Advocate For Respondent: Altaf Haqani
Advocate For Respondent: M.S. Latief
Headnote:
CUSTOM - INHERITANCE - MUSLIM LAW - KHANANISHIN DAUGHTER - SHARE - EVIDENCE - BURDEN OF PROOF - PERSONAL LAW - SUCCESSION - DAUGHTER'S SHARE - CUSTOMARY LAW - MODIFICATION OF PERSONAL LAW - PRESUMPTION - CUSTOMARY USAGE - DEROGATION OF PERSONAL LAW - SPECIFIC PLEADING - STRICT CONSTRUCTION - ORAL EVIDENCE - BEST EVIDENCE RULE - FAMILY TRIBAL OR LOCAL CUSTOM - BURDEN OF PROOF - CUSTOMARY INCIDENTS - SEPARATE DEPARTURE FROM ORDINARY LAW - BINDING CUSTOM - PROOF OF CUSTOM - PRESUMPTION IN FAVOUR OF PERSONAL LAW - CUSTOMARY LAW - PROOF - REASONABLE ANCIENT, CONTINUOUS AND DEFINITE CHARACTER - THEORY AND CUSTOM - ANTITHESES - CUSTOM CANNOT BE A MATTER OF MERE THEORY BUT MUST ALWAYS BE A MATTER OF FACT - CUSTOM CANNOT BE ESTABLISHED BY A PRIORI METHODS - CUSTOM CANNOT BE EXTENDED BY ANALOGY - INDUCTIVE, NOT DEDUCTIVE - ONE CUSTOM CANNOT BE DEDUCED FROM ANOTHER - CUSTOM BASED ON CLAIM BUT FAILING TO ESTABLISHED IT ENTITLED TO FALL BACK UPON PERSONAL LAW - COURT BOUND TO DECIDE CLAIM UNDER PERSONAL LAW - IRRESISTIBLE CONCLUSION - MUSLIM GIRL MADE KHANANISHIN DAUGHTER BY FATHER CAN INHERIT PROPERTY LEFT BY FATHER - INHERITS LIKE A SON - IF OTHER BROTHERS, INHERITS ALONG WITH THEM IN EQUAL SHARE - IF SUCH GIRL FAILS TO ESTABLISH CUSTOM EVEN THEN CAN FALL BACK UPON PERSONAL LAW AND INHERITS SHARE UNDER PERSONAL LAW - DAUGHTER, EVEN IF MARRIED OUTSIDE PARENTAL HOME, CANNOT BE EXCLUDED AND DENIED SHARE IN PROPERTY LEFT BY FATHER IN ANY CIRCUMSTANCE.
Fact of the Case:
Plaintiff, a Muslim woman, claimed to be the khana nishin daughter of her father and sought a declaration that she was entitled to half of his property, or in the alternative, 1/3rd thereof under the Personal Law. The defendant, her brother, admitted that the parties were governed by custom but pleaded that the plaintiff was not a khana-nishin daughter and was therefore excluded from inheriting her father's property. He also claimed that he had been given the entire property by his father through an oral gift.
Finding of the Court:
The trial court found that the plaintiff had failed to prove that she was a khana-nishin daughter and that the defendant had failed to prove the alleged oral gift. It therefore decreed the plaintiff's suit to the extent of 1/3rd of her share in the property.
Issues: 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 fathers’ property like a son? 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? 3. Is the plaintiff in possession of her share of the property left by her father? 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? 5. On proof of Issue No.4 is the plaintiff under custom excluded from inheriting her father as a daughter? 6. Is the suit bad for non-joinder of the heirs of Fazi daughter of Habib Bhat? 7. Is the plaint not signed by the plaintiff, and cannot be said to have been instituted under law? 8. Is the suit liable to be amended for not being property valued? 9. Is that plaintiff estopped and barred to plead a case which is contrary to the one pleaded by her before Dy. Commissioner in an appeal? 10. Relief.
Ratio Decidendi: 1. A daughter who claims to be a khana-nishin daughter and fails to establish her status can fall back on the Personal Law and get the share fixed by the Personal Law. 2. A custom which is in derogation of the Personal Law should be specifically pleaded and the evidence adduced in support of it should be strictly construed. 3. The burden of proving a custom in derogation of the Personal Law is on the party who alleges it. 4. A custom cannot be established by analogy. It must established inductively, not deductively and it cannot be established by a priori methods. 5. A party basing his claim on custom but failing to established it entitled to fall back upon his Personal Law and the court is bound decide his claim under the Personal Law.
Final Decision: The appeal was dismissed and the trial court's decree was upheld.
Certainly. Based on the provided legal document, the key points are:
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Inheritance Rights of Daughters Under Muslim Personal Law:
A daughter who claims to be a khana-nishin daughter and fails to establish this status can fallback on her Muslim Personal Law to claim her share of inheritance. If she does not prove her status as a khana-nishin daughter, she is still entitled to inherit as a daughter under the Personal Law (!) (!) (!) (!) . -
Proof and Establishment of Custom:
Customary law in derogation of Personal Law must be specifically pleaded and strictly proved with high-quality evidence. Such customs are to be established as facts, based on their ancient, continuous, and definite character, and cannot be inferred by analogy or a priori methods (!) (!) (!) (!) (!) (!) . -
Burden of Proof:
The party claiming a custom that modifies or supersedes the Personal Law bears the burden of proof. The evidence must convincingly demonstrate that the custom is well-established, ancient, and consistently followed (!) (!) (!) . -
Inheritance of Women and Custom:
Even if a daughter is married outside her parental home, she cannot be excluded from inheritance under any circumstance. If a daughter is not proven to be a khana-nishin daughter, she can inherit her share as a daughter under the Personal Law. The custom of exclusion must be proved to be an established, ancient practice, which was not demonstrated in the case (!) (!) (!) . -
Inheritance Rights of Khana-Nishin Daughters:
A daughter made a khana-nishin daughter by her father inherits property like a son, in equal shares with brothers. If she fails to prove her status as khana-nishin daughter, she still can succeed under the general Personal Law as a daughter (!) (!) (!) . -
Validity of Oral Gifts:
Oral gifts are permissible under Muslim Law, provided there is clear evidence of declaration, acceptance, and delivery of possession. However, the burden is on the giver to prove the gift, and the gift must be established as a right exercised openly, not merely by manipulation or casual assertion (!) (!) (!) . -
Burden of Proof for Custom and Gifts:
The party asserting a custom or an oral gift must prove it convincingly. The evidence must be specific, ancient, uniform, and supported by documents or high-quality evidence. Mere assertions or stray circumstances are insufficient (!) (!) (!) . -
Legal Framework and Application of Muslim Law:
The applicable laws recognize Muslim Personal Law as the default in matters of inheritance, succession, and related issues unless modified by a specific law or a proven, valid custom. The law presumes Personal Law applies unless the party proves the existence of a custom that modifies it (!) (!) (!) . -
Effect of Failing to Prove Custom:
If the custom is not proven, the inheritance rights are governed by the Personal Law, which generally grants a daughter a prescribed share of the estate. The absence of proof of custom means the daughter inherits according to the Personal Law, regardless of her marriage outside the family (!) (!) . -
Family and Local Customs:
Customs that are tribal or local must be ancient, continuous, and consistent. They cannot be based on mere theory or analogy, and they should not contravene justice, equity, or the principles of good conscience. Customary practices must be supported by clear evidence and not merely by tradition or hearsay (!) (!) (!) . -
Legal Procedure and Evidence:
The burden is on the claimant to prove the existence and validity of the custom or gift. The court relies heavily on documentary evidence and credible witnesses. The failure to produce such evidence results in the application of the default Personal Law (!) (!) . -
Inheritance Rights of Married Daughters:
A daughter married outside her parental home cannot be excluded from inheritance based on custom unless such custom is well-established, ancient, and consistently followed. The law favors her right to inherit, and any custom to the contrary must be rigorously proved (!) (!) . -
Legal Presumption and Default Rules:
In the absence of proof of a valid custom, the law presumes the application of the Personal Law, which grants daughters their statutory shares. The court generally favors the application of Personal Law unless a proven custom modifies it (!) (!) . -
Final Court Approach:
The court emphasizes that custom must be specifically pleaded and proved as a fact. The absence of such proof results in the application of the Personal Law, which grants daughters their rightful inheritance share. The court also underscores that oral gifts require clear, consistent, and credible evidence to be valid (!) (!) (!) .
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2. Mst. Rehati (hereinafter referred to as the plaintiff) and Hassan Bhat (hereinafter referred to as the defendant) are the issues of one Habib Bhat R/o village Kausamulla, Tehsil Chadoora, Budgam, who died in the year 1976 leaving behind landed property comprising khewat No. 13 & 14 Min measuring 16 kanals & 16 marlas and 44 kanals & 18 marlas respectively at village Kausamulla, Chadoora. On Hassan Bhats™ death, Mst. Rehati could not get her share in the said landed property from her brother Hassan Bhat due to which she had to institute a civil suit for declaration and injunction before this Court on 18th January 1984.
3. Mst. Rehati™s claimed that she was the ˜khana nishin™ daughter of Habib Bhat, and pleaded that their family was governed by the custom under which a ˜khana nishin™ daughter inherits like a son, so both she and Hassan Bhat, were entitled to inherit the landed property left by Habib Bhat, in equal shares. In alternative, the plaintiff prayed that if she is not able to prove here status as a khana nishin daughter, she was entitled to fall back on the Personal Law and get her ˜shariyat share™ in the property. The plaintiffs™ grievance was that the Naib Tehsildar of the area had without any competence mutated the property in favour of the defendant on 9th March 1998 but, according to her, such mutation did not affect her title over the land. She, therefore, prayed for a decree of declaration, declaring her entitled to the half share in the property left by Habib Bhat or in alternative 1/3rd thereof under the Personal Law. The plaintiff further prayed that after determining the respective shares of the property, Revenue Officer concerned be directed to partition the land by meets and bounds. She also prayed for a decree of injunction restraining the defendant from alienating the land to any stranger.
4. The suit was contested by the defendant on various grounds. The defendant admitted that the parties were governed by the custom but pleaded that the plaintiff was not a khana-nishin daughter but was married as khana-beeroon daughter to one Salman Khanday of village Panzipora about 50 years back. He further stated that the parties were governed by a custom under which daughters married outside their parental home do not get any share from the property of their parents, as only those daughters who are married as khana nishin are given the son™s share in the property.
5. The defendant filed his amended written statement on 26th July 1986, in which he reiterated the stand taken by him earlier and further submitted that Habib Bhat has given the whole property (movable as well as immovable) to him by way of a verbal Hibba in the year, 1973. He (the father of the defendant) made an offer in this regard to the defendant which was accepted by him and he took over the possession of the movable and immovable property belonging to Habib Bhat, as such, he has become full-fledged owner of the property.
6. This Court on 14th August 1985 framed as many as 10 issues in the case, which are as under: -
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? OPP
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
