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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
S. Murtaza Fazl Ali,Janki Nath Bhat,Jaswant Singh,Mian Jalal-ud-Din, JJ.
Mohd. Akbar Bhat - Appellant
Versus
Mohd. Akhoon & Ors. - Respondent
CSA No. 32/1969
Decided On : 23 August, 1971
CUSTOM - MUSLIM WIDOW - LIFE INTEREST IN HUSBAND'S PROPERTY - REASONABLENESS - CONSTITUTIONALITY - ARTICLE 13 AND 15 OF THE CONSTITUTION OF INDIA - HINDU SUCCESSION ACT - APPLICABILITY.
Fact of the Case:
A Muslim widow brought a declaratory suit seeking a declaration that the sale deed executed by her husband's brother in favor of the defendants was inoperative and void after her death. The widow claimed that under a custom prevailing among Muslims in Kashmir, a widow gets the estate of her deceased husband for her maintenance during her lifetime or till her remarriage, and after her death, the estate reverts to the collaterals of the deceased husband.
Finding of the Court:
The trial court and the lower appellate court held that a Muslim widow had only a life interest in the property which she inherited from her deceased husband and accordingly decreed the suit of the plaintiff. The High Court, in a Full Bench decision, upheld the findings of the lower courts and held that the custom set up by the plaintiff was not unreasonable or repugnant to the concept of good conscience and equity, nor did it violate any of the provisions of the Constitution.
Issues: 1. Whether there is a custom among Muslims of Kashmir according to which a widow gets only life interest in the property after the death of her husband? 2. If so, whether such a custom is reasonable and does not offend any of the provisions of the Constitution so as to be declared void?
Ratio Decidendi: 1. The custom set up by the plaintiff, which grants a Muslim widow only a life interest in the property of her deceased husband, is not unreasonable or repugnant to the concept of good conscience and equity. 2. The custom does not violate any of the provisions of the Constitution, including Articles 13 and 15, which prohibit discrimination on the ground of sex. 3. The custom is based on intelligible doctrine and rational concept and is not opposed to public policy. 4. The custom was retained by various tribes in the valley to preserve vested family interests and to avoid fragmentation of landed property.
Final Decision: The appeal was dismissed with costs.
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.
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 following eleven issues: -
(1) Whether the parties are governed by custom and whether a widow takes the property of her husband till remarriage or death only? O.P.P.
(2) In case issue No. 1 is not proved, can a widow alienate the property of her husband? O.P.P.
(3) Whether a widow can transfer the property left by her husband to meet the legal necessity? O.P.D.
(4) In case issue No. 3 is proved, whether the defendant No. 1 had necessity to alienate the land left by her husband? O.P.D.
(5) Whether the suit is not maintainable, because of the mis joinder of the parties? O.P.D.
(6) Whether the suit is not maintainable in the life time of the defendant No. 1? O.P.D.
(7) Whether all the co-sharers have not been impleaded as parties and how will it affect the present suit? O.P.D.
(8) Whether the sale deed executed by the defendant No. 1 in favour of the defendant No. 2 to 5 is a fictitious one and the amount of consideration is only nominal and how does it affect the present suit? O.P.P.
(9) Whether the suit land was the joint and undivided property of the plaintiff and the husband of the defendant No. 1? O.P.P.
(10) In case issue No. 9 is proved, how does it affect the present suit? O.P.D.
(11) Relief.
3. The trial court recorded the evidence of the parties and ultimately relying upon the evidence of the plaintiffs witnesses and an entry in the book known as Code of Tribal Custom in Kashmir, drawn up by Santram Dogra held that a Muslim widow had only a life interest in the property which she inherited from her deceased husband and accordingly decreed the suit of the plaintiff. The lower appellate court remarked: -
"The two witnesses produced by the plaintiff Rehman Wani and Mehda Wani have both stated that a widow has a limited interest in the property of her husband and she cannot alienate it but can retain the same during her lifetime or till her re-marriage. This is the custom which is supported by the Book on Tribal Customs by Sant Ram Dogra in answer to question 55. The learned author has said: "A widow inherits only life interest."
"The defendants have not rebutted this evidence and the two witnesses examined by them Habib Joo and Saif-Ullah do not speak a word about it........."
It endorsed the finding of the trial court on this point. It seems that there was no serious dispute about the custom in, the lower courts; because, as would appear from the judgment of the learned District Judge, the learned counsel for the appellants had tried to argue that a widow could alienate the property for legal necessity. This point of legal necessity was therefore argued before the courts below and both the courts held that no legal necessity had been proved to authorise the transfer, Mst. Farzi, to alienate the land. Against this concurrent finding, the present appeal has been pr
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