GANI DAR Vs. RAJI (MST )

JUDGEMENT

(1.) THIS second appeal is directed against the judgment of the Additional District Judge at Srinagar who confirmed the decision of the Subordinate Judge at Baramulla dismissing the suit.

(2.) THE plaintiffs are the sons of the pre -deceased brothers of deceased Khizar. The main, contesting defendant is the only surviving brother of Khizar. On the death of Khizar the defendant, his brother, claimed that the entire property vested in him by inheritance. The plaintiffs, on the other hand, contended that they were equally entitled with the defendant to the property by virtue of an alleged custom which modified the personal law of the parties. This is the crux of the dispute between the plaintiffs and the defendant. The defendant died pending the suit and is now represented by his sons.

(3.) IT is common ground that under the Mohammedan Law, which is the personal law of the parties, the plaintiffs have no right to the property in question and that it devolves exclusively on the defendant. But this personal law is alleged to have been abrogated by the custom set up by the plaintiffs. Both the courts below found against the existence of this custom. This finding is now vigorously challenged by the plaintiffs in this second appeal.