LALA Vs. RASULA

JUDGEMENT

(1.) THIS second appeal is directed against a judgment and decree of the learned Addl. District Judge Jammu dated 15th Poh 2011 whereby he has upset the Judgment of the trial Court decreeing the plaintiffs suit for Joint possession. The facts that have given rise to this litigation, briefly stated, are that one Ahmada made a gift of the suit land in favour of his brother, Rasula. Besides Rasula, Ahmada had three more brothers by name, Mahmada, Akbara and Abdullah. The sons of these remaining three brothers brought the present suit seeking a declaration to the effect that the gift deed executed by Ahmada in favour of Rasula was void and inoperative, as according to custom a gift could not be made in favour of an heir unless other heirs consented to it. Along with it, relief of possession was also claimed by the plaintiffs. The defendants denied such a custom and pleaded that the gift was lawfully made.

(2.) THE only point that we have got to see in this case is as to whether in Tehsil Haveli there is such a custom which restricts the right of a person to make a gift of his property in favour of an heir without the consent of his other heirs.

(3.) THE parties in this case are Mohammedans, and as such according to the law in force in this State they have to be governed by the Mohammedan law unless the relevant provision of the Mohammedan law is modified or abrogated by custom. It would therefore lie very heavily upon a person, who pleads a custom in derogation of the Mohammedan law, to prove its existence. Now according to the Mohammedan law, unlike a will, a gift can be made of the whole of a donors property even without the consent of the other heirs. Here in this State, such restrictions as are in force in case of wills, can be imposed if there be a custom to that effect. Now let us see whether there is such a custom obtaining in this State. The trial Court has based its finding upon an entry in a so -called Rivaj -i -am known as Rivaj -i -am Illaqa Poonch Kashmir, which is said to have been issued under the directions and supervision of the Chief Revenue Officer Poonch. In this Riwaj -i -am we find that the following tribes: Ghakkar, Mughal, Pathan, Awan etc. and Mutfarak Kamin miscellaneous Kamin cannot make a gift of ancestral property without the consent of the other heirs. The parties in this case are tailors by profession and do not seem to belong to any of the tribes mentioned above by name, and as such ordinarily the custom which is mentioned in the Rivaj -i -am as applicable to Moghuls etc. cannot be made applicable to tailors who are not at all mentioned in the said Rivaj -i -am