AB AHAD AKHOON Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) ONE Khazir Wani was the Estate Holder of village Pinglishi. He died leaving behind Reshu, son, Mst. Zaina and Mst. Fatta daughters. His estate in the village devolved upon his legal heirs mentioned above in accordance with the Muslim Personal Law. The mutating officer attested mutation Order No. 573 in respect to the estate of Khazir Wani. While attesting mutation, Mst. Fatta one of the daughters was excluded from inheritance on the ground that she was married outside her parental home. This exclusion was allegedly on the basis of some custom. The petitioner herein is the son of Mst. Fatta and after her death, he challenged the mutation Order No. 573, dated 29.11.1971 before the Financial Commissioner, who dismissed the revision vide his order dated 29.11.1994, upholding the mutation. Review petition was preferred before the Financial Commissioner, which also came to be rejected vide judgement dated 20.10.1976. The Financial Commissioner while rejecting the review held that there is no error apparent on the face of the record and otherwise also, the review petition is not maintainable having been filed beyond the period of limitation of 90 days as prescribed under law. All these orders i.e. mutation Order No. 563, dated 29.11.1971, order of Financial Commissioner dated 29.11.1994 in the revision as also order dated 29.10.1996 passed in review petition have been assailed in the present writ petition.

(2.) PETITIONER has challenged the mutation primarily on the ground that the mutating officer has attested the mutation in gross violation of the standing Order 23 -A as also the principles of natural justice. Mst. Fatta, predecessor -in -interest was not summoned by the mutating officer and the mutation was attested in his absence without affording any opportunity of being heard to her, therefore, the mutation is bad in law and liable to be quashed.

(3.) THE other argument of petitioner is that Mst. Fatta was wrongly and illegally excluded from the inheritance on the plea of alleged custom which deprives a female married outside her parental home. It is contended that there is no such custom in the family or the village and the parties were governed by Muslim Personal Law, whereunder Mst. Fatta, mother of the petitioner was entitled to a share in the estate of her father. It is also submitted that Mst. Zaina, the other daughter of Khazir Wani was not a Khananisheen daughter and thus she was conferred undue benefit by the mutating officer. The revisional authority did not consider both these questions viz. That Mst. Fatta was not heard by the mutating officer and secondly that no custom was ever pleaded or established which excluded Mst. Fatta from inheritance of the property of her father.