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2018 Supreme(J&K) 171
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohammad Yaqoob Mir, Ali Mohd. Magrey, JJ.
Rafiqa and Ors. - Appellants
Vs.
Mohammad Maqbool Bhat and Ors. - Respondents
LPAOW No. 55 of 2017
Decided On : 02-03-2018
Advocate Appeared:
For the Appellants : Javid Hameed
For the Respondents: G.M.D. Baba
The main legal point established is that under Muslim Personal Law, oral gift is permissible, and inheritance should be in accordance with Muslim Personal Law, overriding customary law.
Headnote:
Oral Gift - Inheritance Dispute - Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007 - Mutation No. 587, Mutation No. 2453
Fact of the Case:
The case involves a dispute over inheritance of landed property between the daughters and son of the deceased. The deceased had orally gifted a portion of the land to his son, and mutation of inheritance was attested in favor of the son, excluding the daughters based on customary law.
Finding of the Court:
The court found that the oral gift of land by the deceased to his son was valid under Muslim Personal Law. However, the mutation of inheritance excluding the daughters based on customary law was set aside, and the daughters were given the liberty to challenge the oral gift through appropriate legal proceedings.
Issues: The key issues revolved around the validity of the oral gift, the application of customary law in inheritance, and the interpretation of the Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007.
Ratio Decidendi: The court held that oral gift under Muslim Personal Law is permissible, and the daughters were entitled to challenge the oral gift through legal proceedings. The mutation of inheritance based on customary law was set aside in favor of inheritance according to Muslim Personal Law.
Final Decision: The court upheld the oral gift of land to the son and allowed the daughters to challenge it if they choose to do so. The mutation of inheritance was set aside, and the Tehsildar was directed to attest the mutation afresh in accordance with Muslim Personal Law.
Mohammad Yaqoob Mir, J.
1. By medium of this appeal filed under Clause 12 of the Letters Patent, judgment dated 18.11.2015, passed by learned Single Judge in OWP No. 867/2010, is assailed.
2. Precise factual matrix of the case is required to be noticed for appreciating the matter in its right perspective:
(I) Sultan Bhat (deceased) is survived by six daughters (appellants and respondents No. 5 to 7) and a son, Mohammad Maqbool (respondent No. 1). The deceased had landed property at two places i.e. in village Chundina and in village Shala Bugh.
(II) Regarding estate situated in village Chundina, mutation on the basis of oral gift, on the statement of Sultan S/o. Nabir (owner) father of the parties, has been attested to the extent of 19 kanals 11 marlas in favour of respondent No. 1.
(III) Vide mutation No. 587 dated 21.01.1989, mutation of inheritance vis-à-vis estate at Shalla Bugh has been attested vide mutation No. 2453 dated 2nd July, 1996 in favour of respondent No. 1. While following customary law, the daughters have been excluded from inheritance having been married outside parental home, in customary parlance known as "Khana Beeron".
(IV) Mst. Rafiqa, one of the daughters, filed revision before Financial Commissioner Revenue against mutation No. 587 dated 21.01.1989 attested vis-à-vis estate situated in village Chundina. Same has been allowed vide order dated 20.08.2009 and case remanded to Tehsildar, Ganderbal, for passing fresh orders under the Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007.
(V) Against another mutation bearing No. 2453 dated 02.07.1996 attested vis-à-vis estate situated in village Shala Bugh, a separate revision petition has been filed by Mst. Rafiqa, which too has been allowed vide order dated 20.08.2009. Mutation order has been set aside and case remanded to Tehsildar, Ganderbal, for passing fresh orders under Shariat Application Act, 2007.
(VI) Against the order dated 20.08.2009, appeal was filed before J & K Special Tribunal, Srinagar, which has been dismissed as not maintainable because the order of Financial Commissioner Revenue, was not passed under the provisions of Agrarian Reforms Act.
(VII) In pursuance to the order of Financial Commissioner dated 20.08.2009, fresh enquiry has been conducted vis-à-vis estate situated at Village Chundina. Respondent No. 1 (son) had also appeared and made a submission that the property of Sultan (deceased) may be attested in favour of legal heirs in accordance with Muslim Personal Law. The Tehsildar after recording as to what had been stated by inhabitants of the village and respondent No. 1, has attested mutation on 22.11.2010 in favour of respondent No. 1 and the daughters as per Shariat Law which has not been challenged.
(VIII) Respondent No. 1 (Mohammad Maqbool Bhat) filed writ petition (OWP) No. 867/2010 wherein both the orders dated 20.08.2009 passed by revisional authority (Financial Commissioner) were assailed. Learned Single Judge has observed that the revisional court has wrongly observed that the oral gift is invalid.
(IX) Aggrieved by the judgment of the learned Single Judge dated 18.11.2015, instant appeal has been filed.
3. Mohammad Sultan Bhat, father of appellants, respondent No. 1 and respondents No. 5 to 7 has died in the year 1995. During his lifetime he has orally gifted 19 kanals 11 marlas of land situated at village Chundina in favour of his son Mohammad Maqbool (respondent No. 1), as is the position reflected and recorded in mutation No. 587 attested on 21.01.1989. Mohammad Sultan, as recorded by mutating officer in presence of respectable of the village including village guard, has stated that he has orally gifted 19 kanals 11 marlas of land in favour of his son so after his death nobody has a claim against the same.
4. After the death of Mohammad Sultan, mutation of inheritance for the estate situated in village Shala Bugh has been attested vide mutation No. 2453 dated 02.07.1996. The Tehsildar while attesting mutati
