Inheritance under Muslim Personal Law mandates equal rights for daughters, and procedural compliance is essential in attesting mutations.

JUDGMENT :

1. Petitioners pray to quash order dated 30.03.2013 passed by respondent no.2. They also seek to quash Order dated 17.05.2017, passed by respondent no.1. They also pray to direct respondent not to interfere in the peaceful possession of petitioners over the land for which mutation no.106 dated 10.01.1981 and mutation no.147 dated 25.09.1987 have been attested after following due procedure and law prevalent at that relevant point of time.

2. The petitioners’ case is that common ancestor of petitioners and respondent no.4 died in the year 1981, leaving behind landed property. They also state that a report in mutation register of Patwar and Girdawar (column 14) was made mentioning that petitioners approached revenue authorities and revealed that as their father died leaving behind landed property which devolved upon them which be mutated in their favour. Petitioners stated in their application that successors/inheritors of property were his sons and wife and a daughter and that daughter/ respondent no.4 had married as Khana Berun, outside the parental house, and since village was governed by customary law, therefore, mutation be passed in favour of petitioners and widow of Ahsan Khan only. According to petitioners, a detailed enquiry as per Standing Order 23-A was conducted, and statement of villagers including Lumberdar and Chowkidar was recorded, and in presence of respectable persons of the village mutation was attested vide no.106 on 10.01.1981. Subsequently, one more mutation was attested after mother of petitioners died, leaving behind her share in the property which devolved upon legal heirs viz. petitioners and accordingly as per report submitted by Patwari and Girdawari that Mst. Zaina widow of Ahsan Khan had died leaving behind legal heirs and accordingly mutation was attested vide no.147 on 25.09.1987 in favour of petitioner herein. According to petitioners, respondent no.4, after fifteen years, challenged mutations in an appeal before respondent no.2, who without seeking condonation of delay and in total derogation of law, has set-aside mutations bearing no.106 dated 10.01.1981 and no.147 dated 25.09.1987 and remanded the case back to Tehsildar concerned for detailed enquiry with a direction to attest the mutation afresh under Muslim Personal law in presence of necessary parties. Petitioners challenged order dated 30.03.2013 before respondent no.1 in a revision petition, but he dismissed the revision by virtue of order dated 17.05.2017. Hence this writ petition.

3. Reply has been filed by respondents.

4. I have heard learned counsel for parties and considered the matter.

5. Learned counsel for petitioners has stated that respondent no.1 while passing the impugned order has admitted that respondent no.2 has erred in not condoning delay before deciding the case as it was mandatory upon the appellants to file the application for condoning delay before filing the appeal and same was to be decided by respondent no.2 before passing order impugned. He also avers that there is not a whisper about illegality committed by the attesting authority in effecting mutation more particularly when Standing Order 23-A and Rule 46 thereof was complied with. According to learned counsel, respondent no.1 has in a mechanical manner applied Shariat Law to the cases which were pending before application of Shariat Act. Respondent no.1 by passing impugned order has usurped the powers of civil court.

6. Appeals were filed by respondent no.4, Mst. Sara, against mutations no.106 and 147, inter alia, on the grounds that Naib Tehsildar, Bandipora, without giving any information through notice or summons to her, being daughter/legal heir of dec