KHATJI Vs. MUKHTI

JUDGEMENT

(1.) THIS is a plaintiffs second appeal and arises out of a suit for possession filed by her before the trial court. The plaintiffs case was that the parties are governed by custom in matters of succession and that she being a khanna nishin daughter of Ramzan Khandey was entitled to l/6th share of the land in dispute measuring 19 Kanals and 10 Marias comprised in Khewat No. 48 in Tehsil Pulwamma. The plaintiff thus claimed the entire share of her father Ramzan Khandey.

(2.) THE suit was resisted by the defendants on the ground that she was not a "Khanna Nishin" daughter and there was a custom under which a daughter could inherit only if she was a khanna nishin daughter and not otherwise. The defendants also pleaded that they were in possession of the land in question for more than 12 years and had acquired title by adverse possession. - - -

(3.) THIS clearly shows the rights of a Dukhtar -i -Khanna Nishin vis -a -vis a widow, if the father leaves one. Mr. Dogra has not at all given any answer to the question whether a daughter simpliciter under the Mohammadan Law could inherit or not. In absence of such an answer, it must be presumed that if a woman does not possess the status of a khann nishin daughter, she can still fall back upon her personal law unless there was a custom to the contrary. It is also well settled that where a particular custom is set up, it over rules the personal law only in so far as such custom covers the ground. In other words custom supersedes ordinary law in so far it is proved and everything beyond that must be decided by the personal law. Thus for instance, if there is a custom that if a daughter is knanna nishin, she can inherit the entire property of her father, it cannot be projected by a process of reasoning to include a custom by which a daughter is completely debarred from inheritance if she does not possess the status of a khanna nishin daughter. In 9 J & K Law Reports, 122, the Board made the following observations: -