ZAINA Vs. STATE OF J&K

JUDGEMENT

(1.) The petitioners have challenged an order of mutation passed after a lapse of 45 years. Though the learned Financial Commissioner, Revenue in the impugned order has referred to the contention of the learned counsel for the petitioners that Naib Tehsildar had no power to attest the disputed mutation as such the same would require to be set aside. It was submitted by the learned counsel for the revision petitioners, the adopted son of Malla Rajab, that the mutation was attested on 25.5.1967 and the property of Malla Rajab was equally distributed on the basis of varasat nama duly registered by the Sub Registrar, Kulgam between the adopted son and the real son of Malla Rajab. The learned Financial Commissioner Revenue in the impugned order has stated that at the time the order of mutation was passed there was a custom which excluded the daughters from inheritance who are married out of family. It is for this reason the learned Financial Commissioner stated in the impugned order that there was no justification for opening mutation after a lapse of 45 years.

(2.) Learned counsel further submitted that the order of mutation passed by Naib Tehsildar as also the order passed by the Financial Commissioner Revenue are illegal. Learned counsel referred to paragraphs 7 and 29 of the Standing Order 23-A and submitted that the order of mutation No. 344 passed by Naib Tehsildar on 25.5.1967 having not been passed in accordance with the procedure provided in Standing Order 23-A is nullity. Learned counsel further submitted that the parties are governed by the Muslim Law and the daughter is entitled to inherit her deceased father. Learned counsel also referred to the J&K Muslim Personal Law (Shariat) Application Act, 2007 to support his contention.

(3.) The claim projected by the petitioners before the revenue authorities as also in this writ petition cannot be sustained for the following reasons;