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1971 Supreme(J&K) 44

JANKI NATH BHAT, S.MURTAZA FAZAL ALI, JASWANT SINGH, MIAN JALAL-UD-DIN
Mohd. Akbar Bhat – Appellant
Versus
Mohd. Akhoon – Respondent


Advocates Appeared:
Advocate For Appellant: Sundar Lal
Advocate For Respondent: A.K. Malik

Judgement Key Points

The legal document discusses the validity and constitutionality of a customary practice among Muslims in Kashmir, where a widow is granted only a life interest in her deceased husband's property. The core issues revolve around whether this custom is reasonable and whether it contravenes constitutional provisions, particularly Articles 13 and 15, which prohibit discrimination and protect fundamental rights.

The court's findings establish that this custom is not unreasonable or against good conscience and does not violate constitutional rights. It is rooted in rational doctrine, intended to preserve family interests and prevent land fragmentation, which is vital for the agricultural economy of the region. The custom permits the widow to enjoy the property during her lifetime or until remarriage, with rights of transfer limited to specific relations, such as daughters or adopted sons, and excludes others from alienation rights.

The court emphasizes that such customs are recognized as valid unless they are contrary to justice, equity, and good conscience or are declared void by a competent authority. It also notes that these customs are distinct from personal law and have been historically upheld based on local practices and economic considerations. Furthermore, the custom's origin from Hindu law does not automatically invalidate it among Muslims, especially given its rational basis and societal acceptance.

The document advocates that, in the absence of legislation to the contrary, these customs should be respected. It also highlights that customs can vary among different communities within Kashmir, and some customs may be unjust or discriminatory, warranting legislative reform. Overall, the practice of granting a Muslim widow only a life interest is deemed consistent with constitutional principles, rational, and rooted in local socio-economic realities, though there is recognition of the need for uniform legislative standards to address disparities and modernize inheritance laws.


Per Bhat J.

1. This civil second appeal against the decree passed by the District Judge, Baramulla, dated 28th June 1969 confirming a decree passed by Sub Judge Baramulla, on 30-11-1967, arises out of the following facts:

2. Mohammad Akhoon, plaintiff, brought a declaratory suit with a prayer that the sale deed executed and registered on 23-5-1961 for 6 kanals 2 marlas of land under different survey numbers in Khewat Nos. 1, 2 and 3 situate in village Hum Tehsil Baramulla by Mst. Farzi, the widow of Ahad, brother of Mohammad Akhoon plaintiff, in favour of the defendants 2 to 5 be declared inoperative and void after the death of Mst. Farzi. The case of the plaintiff was based on a custom which according to him was to the following effect: That a Muslim widow gets the estate of her deceased husband for her maintenance during the life time or till her remarriage and after her death, the estate reverts to the collaterals of the deceased husband and as such a widow cannot make an alienation, temporary or permanent, of the property left behind by her husband. There were other pleas raised; in the written statement this custom was denied. The pleadings of the parties gave rise to the foll






















































































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