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IN THE HIGH COURT OF JAMMU AND KASHMIR
MOHAMMAD YAQOOB MIR, ALI MOHAMMAD MAGREY, JJ.
Jabar Malik - Appellant
Versus
State Of J&K - Respondent
LPA(OW) No. 264 of 2017
Decided on : 08-03-2018
mutation - inheritance - Sri Pratap Jammu and Kashmir Laws (Consolidation) Act, Svt. 1977 (1920 AD) - Jammu and Kashmir Muslim Personal Law (Sharita) Application Act, 2007 - [Section 4(1)(d), Section 5, Section 2, Section 3] - The court discussed the mutation of succession, the application of customary law, and the impact of the Jammu and Kashmir Muslim Personal Law (Sharita) Application Act, 2007 on succession and inheritance. The court highlighted the relevance of local customs, the change in the rule of decision for Muslims, and the prospective effect of the legislation.
Fact of the Case:
The case involved a dispute over the mutation of succession following the death of an estate holder. The respondent, Mst. Taja, challenged the mutation after a delay of 20 years, claiming inheritance rights.
Finding of the Court:
The court found that the delay in challenging the mutation was unjustified and not condonable. It emphasized the importance of adhering to the mandate of Standing Order 23-A for mutation of succession.
Issues: The main issue was the condonation of the delay in challenging the mutation of succession, and the relevance of customary law and the Jammu and Kashmir Muslim Personal Law (Sharita) Application Act, 2007.
Ratio Decidendi: The court held that the delay in challenging the mutation was not acceptable, and the adherence to the mandate of Standing Order 23-A was crucial. It also emphasized that the order of mutation did not bar the aggrieved party from seeking other available remedies.
Final Decision: The court set aside the order passed by the learned Single Judge and disposed of the appeal, emphasizing that the observations made were confined to the position of attestation of mutation and challenge thereto.
Mohammad Yaqoob Mir, J.
Judgment dated 12.10.2017 rendered in OWP No. 699/2008 titled “Mst. Taja v. Financial Commissioner and others”, is assailed by medium of this appeal under Clause 12 of the Letters Patent.
2. Noticing precise factual matrix of the case shall be advantageous for appreciating the matter in its right perspective:
(I) On the death of estate holder, Aziz Malik, mutation of succession bearing No. 13 has been attested by Naib Tehsildar on 31st July, 1975, in terms whereof estate of the deceased has been mutated in favour of son Jabbar Malik(appellant), daughter Mst. Taja (respondent No. 3) who at that time was minor and in favour of Mst. Shah Mali (widow) till remarriage. On the mutation, the genealogy has been reflected as under:
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(II) The mutation of succession has been attested while following customary law.
(III) The procedure for record of mutation is prescribed in Standing Order 23-A. Part-II of the said Standing prescribes that the Patwari has to enter mutation promptly regarding any case of transfer by (i) inheritance within three months of the death of right holder, (ii) a registered deed, within one month of the receipt of memorandum.
(IV) On the death of Aziz Malik, Patwari has entered mutation and thereafter has placed the same before the Tehsildar for attestation.
(V) The Sri Pratap Jammu and Kashmir Laws (Consolidation) Act, Svt. 1977 (1920 AD) provides the manner of administration of laws by the civil and criminal courts of the State. Section 4(1)(d) is reproduced here-under:
“(d) in question regarding succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, waqf, partitions, castes or any religious usage or institution, the rules of decision is and shall be the Mohammedan Law in cases where the parties are Mohammedans and the Hindu Law in cases where the parties are Hindus, except in so far as such law has been, by this or any other enactment, altered or abolished or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity and good conscience and has not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority;”
(VI) Section 5 is also relevant to be quoted:
“5. Customs and mercantile usages. All local customs and mercantiles usages shall be regarded as valid, unless they are contrary to justice, equity and good conscience, or have been, or shall be, declared to be void by any competent authority. “
(VII) Two Sections read conjointly provide that all local customs shall be regarded as valid unless contrary to justice, equity and good conscience or have been or shall be declared to be void by any competent authority.
(VIII) In the State of Jammu and Kashmir different customs regarding inheritance are followed in different parts. The customs as were prevalent were compiled by Pandit Sant Ram Dogra. The validity of the customs was challenged before this Court. Same was decided by the Full Bench of this court in the case of Mohammad Akbar Bhat v. Mohammad Akhoon and others, (1972) AIR(J&K) 105. The majority view is that all these are not customs without a purpose but they have a deep significance and have considerable influence on the economy of the villagers. So long as the legislature, through elected representatives of the people do not enact any law which makes the personal law of the parties the rule of succession. These customs should be respected and adhered to.
(IX) The concept of 'Khana Beeron' and 'Khana Nisheen' is the incident of custom. Likewise, inheritance by widow lifetime is also an incident of custom. 'Khana Nisheen' daughter means a daughter for whom son-inlaw, on wedding, is brought to reside in the parental house of the daughter whereas 'Khana Beeron' means a daughter who, on the wedding, accompanies her husband to her in-law's house. As per c
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