NOORI Vs. RAZAK BHAT

JUDGEMENT

(1.) THIS was a suit to set aside certain alienations made by one Mst. Noori by way of sale and mortgage. The plaintiffs who represent themselves to be the reversioners of the last male owner brought this suit on the ground that Mst. Noori had only limited interest in the property left by her father and could not permanently it alienate it. From a perusal of the pleadings it would appear to be common ground between the parties that they are governed by custom for the purposes of inheritance. Mst. Noori inherited the entire property and her name was mutated upon the whole even in the presence of collaterals. Even so it was contended in defence that Mst. Nooris power of alienation was unlimited.

(2.) THE court of first instance came to the conclusion that the plaintiffs had not been able to establish their case and dismissed their suit. The lower appellate court took the view that custom has been impliedly admitted in the pleadings of the parties the custom being that females only take a limited interest -reverted to the question whether there was legal necessity for the alienations and came to the conclusion that there was no satisfactory evidence to prove that fact. In these circumstances the plaintiffâ„¢s suit was decreed and the judgment of the first court overset.

(3.) BEFORE us it is admitted by the learned counsel appearing on behalf of the defendants appellants that in the circumstances of the case custom must be taken to have been impliedly admitted by the parties. Learned counselâ„¢s main greviance is that he should have been allowed an opportunity that Mst. Noori could alienate the entire property during the life time. In the first instance this position is very inconsistent with the notion of the custom prevailing in this valley as found in sant Ram Dogras book Secondly, if such a custom was relied upon by the defendants it was for them to pray for an opportunity to prove it. In our opinion the issue [sic] .this matter to the effect whether the power of alienation of Mst. Noori in the property in dispute is restricted clearly covers the whole ground and the defendants could lead evidence if they so chose in support of their allegation Evidence was led on behalf of the defendants with regard to alienation by a female. Form that evidence also it is clear that it is only a life interest that is inherited by a female and that no alienation can be made without legal necessity. In these circumstances we agree with the finding arrived at by the lower court. There is no force in this appeal and it is dismissed with costs.