MALIK DAR Vs. JANTI

JUDGEMENT

(1.) THIS is a review petition filed by Malik Dar and others, the petitioners, seeking to set -aside the judgment and decree passed on

(2.) -9 -1969 in second appeal by this court. 2. A notice was issued to the respondents who have appeared through their Counsel.

(3.) THE petitioners contention is that there is an apparent mistake in the judgment, in -as -much as the court has not appreciated, in accordance with the custom prevailing between the parties, the legal position as to who is the agnate of the last holder of the estate. The present respondents are not the agnates of the last holder under custom and as such they cannot succeed to the estate left by the last holder. It is further contended that the dispute relates to the property left by Mst. Khatiji daughter of Mohammad who had an aunt Mst. Khurmi who was made DUKHTAR KHANA NISHIN by her father Noora. Both Khurmi and Mohammad succeeded to their fathers property in equal shares. As Khana Nishin daughter she could succeed to no body else except her father. The finding of the court that she could inherit as an agnate is a mistake apparent on the face of the record. The institution of an agnate is a conception under the Mohammadan Law and this principle of Muslim Law cannot be applied to the case of families who follow custom in matters relating to succession.