SAFIA Vs. FATIMA

JUDGEMENT

(1.) THIS appeal pertains to Kishtwar Tehsil and arises oat of the following facts: - One Ahmad Sheikh died in the year 1994 leaving behind, him a son by name, Wali Sheikh, and a daughter, by name, Safia. Safia claimed that she was a resident daughter (khana nashin). After the death of Ahmad Sheikh, the landed property left by him remained unmutated in the name of anybody till the year 2002. We have it in evidence that after all mutation was effected in the year 2002 in the name of Wali Sheikh, and the claims of Sana were not taken notice of by the revenue authorities. It so happened that in the year 2004 Wali Sheikh also died. After his death mutation was effected in the name of his two daughters and in the name of Safia, who as already stated, was ignored at the time of the previous mutation effected on the death of Ahmad Sheikh, her father. It is found by both the Courts below that Safia came into possession of the property left originally by Ahmad Sheika, somewhere in the year 2005. In Jeth 2006 Safia brought a suit seeking a declaration to the effect that she was a khana, nashin daughter of Ahmad Sheikh, and as such she had acquired the status of a son and was entitled to share half and half with Wali Sheikh, her brother, the property that was left by Ahmad Sheikh, She also had averred in her plaint that according to custom a khana nashin daughter acquired the status of a son and was entitled to succeed equally with her brother. The trial Court of Munsiff Kishtwar found that Safia was not a khana nashin daughter, nor was the custom of making khana nashin daughter in presence of male heirs of the last owner proved in the case. But the trial Court held that Safia was a Muslim and as such was governed by Mohammedan Law, and even though she had not been able to prove herself as a khana nashin daughter, she could not be deprived of her rights which vested in her as a Muslim according to Mohammedan Law. It, therefore, passed a decree to the extent of one 3rd share (to which a daughter is entitled according to Mohammedan Law) in favour of Safia in the property left by Ahmad Sheikh, On appeal, the learned Senior Subordinate Judge Jammu arrived at the conclusion that since Safia had based her suit upon custom which she had failed to establish, therefore her suit deserved dismissal. He, therefore, ordered his dismissal of the plaintiffâ„¢s suit. He has based his finding upon a passage which occurs in a judgment of this Court reported as Mst. Zebi versus Resha Mir and Others (IV J. & K L. R. 254) which runs as follows: -

(2.) IT was farther contended on behalf of the appellant that even if she were not a khana - nashin daughter she would be entitled to a share under the Mohammedan Law. It was common case of the parties that succession was governed by custom under which a khana nashin daughter succeeded to the entire property. Succession could be governed -either by a custom or by personal law because there cannot be two different and inconsistent rules of succession or inheritance. It was admitted by the parties that a khan a nashin daughter would, succeed to the entire property. The Plaintiff is not a khana nashin daughter and according to the custom stated above she would not inherit the property at all. 

(3.) WE wish that the learned. Senior Sub -Judge had read the nest following paragraph occurring in the same judgment. This paragraph runs as follows: - It appears that some confusion exists as to -whether a person who sets up a custom relating to - succession can inherit under the Mohammedan Law. It is only when a custom is set up by a plaintiff which is not admitted by defendant and the plaintiff fails to prove the existence of the custom that the plaintiff would be entitled to succeed under the Mohammedan Law...........  In this case the custom alleged by Safia was denied by the opposite party and the trial Court itself came to the conclusion that no custom of the variety pleaded by Safia was proved. Therefore according to the very judgment upon which reliance has been placed by the learned Senior Sub -Judge, there is no reason as to why Safia should not be allowed to all back upon the provisions of Mohammedan Law.