MUMTAZ BEGUM Vs. S AMAN ULLAH KHAN

JUDGEMENT

(1.) THIS is a plaintiffs appeal in a suit for partition of land measuring 385 kanals and 9 marlas under khewat No. 1/1, 4/4 and 5/5 situate in village Zakoora, Tehsil Ganderbal and under khewat No. 24/21 village Gulab Bagh, Tehsil Ganderbal, on the ground that the plaintiff under a will left by her father Sardar Abdul Qayoom Khan was entitled to one -third share. It was further pleaded by the plaintiff that if the will was not establish ­ed, she was still entitled to inherit one -fourth share in the pro ­perty as a daughter of Sardar Abdul Qayoom Khan. The suit was resisted by defendent No. 1 who denied the title of the plaintiff and pleaded that according to the well established custom in the family only those daughters could inherit the property of their father who were made resident daughters (Dukhtar Khana Nishin) and who were not married outside the house of their father. In other words the custom pleaded was that every daughter who was not taken as a resident daughter would be completely excluded from the inheritance. The defendant contended that as the plaintiff was not taken as a resi ­dent daughter (Dukhtar Khana Nishin) but was married out ­side the family, she was completely excluded from inheriting her fathers property and the suit was therefore not maintain ­able. The plea taken by the first defdt. was fully supported by defendant No. 2, who was another daughter of Sardar Abdul Qayoom Khan and a sister of the plaintiff. She appears to have supported the case of her brother against the plaintiff.

(2.) THE plaintiffs case further was that her father died in the year 1931 and after his death the property was mutated in the name of the children of Sardar Abdui Qayoom Khan namely the plaintiff, her sister defdt. No. 2 and her brother delendant No. 1. Till the death of the plaintiff, mother in 1957, she used to get the profits of the property in question but the defdt. No. 1 stopped giving the profits to the plaintiff after the death of their mother in the year 1957. Hence the suit.

(3.) THE learned Sub Judge (Judge Small Causes Court) Srinagar, who decided the suit accepted the plea taken up by the defendants and held that as the parties were governed by a custom which over -ruled the personal law the plaintiff was not entitled to any share in the property of her father and he accordingly dismissed the suit of the plaintiff. On the pleadings of the parties as many as 12 issues were raised which are as follows: -