MOHD AKBAR BHAT Vs. MOHD AKHOON

JUDGEMENT

(1.) THIS civil second appeal against the decree passed by the District Judge, Baramulla, dated 28th June 1969 confirming a decree passed by Sub Judge Baramulla, on 30 -11 -1967, arises out of the following facts:

(2.) MOHAMMAD Akhoon, plaintiff, brought a declaratory suit with a prayer that the sale deed executed and registered on 23 -5 -1961 for 6 kanals 2 marlas of land under different survey numbers in Khewat Nos. 1, 2 and 3 situate in village Hum Tehsil Baramulla by Mst. Farzi, the widow of Ahad, brother of Mohammad Akhoon plaintiff, in favour of the defendants 2 to 5 be declared inoperative and void after the death of Mst. Farzi. The case of the plaintiff was based on a custom which according to him was to the following effect: That a Muslim widow gets the estate of her deceased husband for her maintenance during the life time or till her remarriage and after her death, the estate reverts to the collaterals of the deceased husband and as such a widow cannot make an alienation, temporary or permanent, of the property left behind by her husband. There were other pleas raised; in the written statement this custom was denied. The pleadings of the parties gave rise to the following eleven issues: - (1) Whether the parties are governed by custom and whether a widow takes the property of her husband till remarriage or death only? O.P.P. (2) In case issue No. 1 is not proved, can a widow alienate the property of her husband? O.P.P. (3) Whether a widow can transfer the property left by her husband to meet the legal necessity? O.P.D. (4) In case issue No. 3 is proved, whether the defendant No. 1 had necessity to alienate the land left by her husband? O.P.D. (5) Whether the suit is not maintainable, because of the mis joinder of the parties? O.P.D. (6) Whether the suit is not maintainable in the life time of the defendant No. 1? O.P.D. (7) Whether all the co -sharers have not been impleaded as parties and how will it affect the present suit? O.P.D. (8) Whether the sale deed executed by the defendant No. 1 in favour of the defendant No. 2 to 5 is a fictitious one and the amount of consideration is only nominal and how does it affect the present suit? O.P.P. (9) Whether the suit land was the joint and undivided property of the plaintiff and the husband of the defendant No. 1? O.P.P. (10) In case issue No. 9 is proved, how does it affect the present suit? O.P.D. (11) Relief.

(3.) THE trial court recorded the evidence of the parties and ultimately relying upon the evidence of the plaintiffs witnesses and an entry in the book known as Code of Tribal Custom in Kashmir, drawn up by Santram Dogra held that a Muslim widow had only a life interest in the property which she inherited from her deceased husband and accordingly decreed the suit of the plaintiff. The lower appellate court remarked: - "The two witnesses produced by the plaintiff Rehman Wani and Mehda Wani have both stated that a widow has a limited interest in the property of her husband and she cannot alienate it but can retain the same during her lifetime or till her re -marriage. This is the custom which is supported by the Book on Tribal Customs by Sant Ram Dogra in answer to question 55. The learned author has said: "A widow inherits only life interest." "The defendants have not rebutted this evidence and the two witnesses examined by them Habib Joo and Saif -Ullah do not speak a word about it........." It endorsed the finding of the trial court on this point. It seems that there was no serious dispute about the custom in, the lower courts; because, as would appear from the judgment of the learned District Judge, the learned counsel for the appellants had tried to argue that a widow could alienate the property for legal necessity. This point of legal necessity was therefore argued before the courts below and both the courts held that no legal necessity had been proved to authorise the transfer, Mst. Farzi, to alienate the land. Against this concurrent finding, the present appeal has been preferred to this court.