GH RASOOL Vs. HUSSAINA

JUDGEMENT

(1.) DEVOLUTION of property left behind by the deceased Siraj -ud -din upon his legal heirs, a widow and two daughters by dint of Muslim personal law has become subject matter of a civil suit before the Learned Munsiff, Billawar filed by widow because of alleged interference by one Ghulam Rasool, brother of the deceased who claims to be an executor appointed under the Will, Along side an application for interim relief under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure was also laid which stands allowed by trial Court vide its order dated 11.08.2001 placing a restraint on the defendant Ghulam Rasool against ouster of the plaintiff from the house, deceased used to dwell in, besides, land comprising survey No. 264 situated at Village Machheti Tehsil Billawar owned and possessed by the deceased. Being aggrieved, the order was assailed by medium of a Civil 1st Miscellaneous Appeal before the Learned District Judge, Kathua, which was heard and decided by order dated 04.03.2004, fall out being, confirmation of the interim relief granted by the Learned Munsiff, resultantly, dismissal of appeal by order dated 04.03.2004, hence this Revision petition.

(2.) I have heard learned counsel for the petitioner at length. Being averse to interference with the impugned order on the strength of facts of the case, appearance of the plaintiff -respondent No. 1 is immaterial, accordingly, I proceed in her absentia which course is not impermissible because right of hearing becomes imperative if an order in contemplation is likely to effect the rights of the absentee -party adversely. In the case on hand refusal to interfere with the order I am for, does no way plunge the plaintiff into an unfavorable condition or circumstance, therefore, she need not be put on notice. What persuades me to decline indulgence needs to be appreciated in the light of arguments advanced at the bar.

(3.) THE principal contentions of the learned counsel are that on the basis of Will deed supported by mutation coupled with failure of the plaintiff respondent to challenge the Will within prescribed period of limitation has created a right in the defendant -petitioner to own and possess the property of the deceased Siraj -ud -din. The proposition urged needs to be examined taking in view the attending facts of the case which reveal that the Will deed dated 20.09.1993 was cancelled on 22.11.1993 which event was not brought to the notice of the revenue authorities by the defendant -petitioner while seeking attestation of the mutation. The authorities have otherwise also breached the mandate of personal law the deceased had faith in, as also Para 104 of the standing order 23 -A (Mutation) by having mutated entire property of the deceased on the basis of a deed of Will that too at the back of legal heirs of the deceased. Although their names do figure in the mutation itself, yet they were not put on notice. As regards time -barred objection no provision of Limitation Act is referred which could be attracted. Be that as it may, it being the positive stand of the petitioner that the Will deed stands cancelled by a cancellation deed, the argument of bar of limitation is bereft of any substance. Emphasis laid on the written statement of Khursheeda Begum -proforma defendant is also of no utility to the defendant -petitioner because no dispute is raised in the written statement in respect of the cancellation deed. Suffice it to say that the cancellation deed has rendered the Will non existent and by no stretch of imagination the defendant No. 1 -petitioner can claim vesting of a right on the basis of a document rendered redundant by a valid revocation deed. Similarly, reliance on the agreement to establish adoption of one Ibrahim Khan by deceased Siraj -ud -din is also of no help to the defendant -petitioner because if the agreement is believed it may extend a right to Ibrahim Khan. If that be so it compounds the confusion because the said agreement cannot create any right in the defendant -petitioner. How treacherous it is that he aims at denial of right to the plaintiff -respondent immaterial who in the process is benefited. What logic it has one fails to understand. That apart adoption deed falls within the category of documents of which registration is compulsory under the Provisions of Registration act, 1977 which is admittedly wanting, therefore, hit by Section 49.