SARI Vs. AHAD MIR

JUDGEMENT

(1.) APPEAL No. 44 and the cross -appeal arise in the following circumstances.

(2.) HAMZA Mir who was the proprietor of the land in question died leaving behind the two sons Ahad and Wali and a daughter seriarvi who was married to Akram. The plaintiff brought a suit in the court of Sub -Judge Handwara praying for a declaration that the will executed by Hamzi Mir in favour Sarvi and a sale deed executed by him dated 28 -4 -56 registered on 4 -5 -56 in favour of Akram were invalid and inoperative inasmuch as Hamza was a person of an unsound mind or at any rate a person of weak intellect and understanding and the two documents has been executed by Akram and Sarvi by exercising undue in fluence on Hamze Mir. The plaintiffs further prayed for a decree for Possession on the basis of the right of prior purchase on the ground that they were the next heirs. The plaintiffs further averred that Mst Sarvi was not a Khana Nashin daughter of Hamze Mir, but was married outside the family and that therefore the plaintiffs alone were entitled to inherit the property according to the custom that was prevalent into the family. The plaintiffs, however, did not allege the existence of a specific custom by which a daughter simplicitor loses the right of inheritance completely unless she is taken as a Khana Nashin daughter. Such a custom may be implied from what has been pleaded in Para 1 of the plaint, but it has not been expressly stated. It may also be mentioned here that no issue was raised by the trial court on the question of the existence of a custom which excluded a daughter simplictor from inheritance merely because she was not taken as a Khana Nashin daughter. The trial court, after taking the evidence of the parties and framing as many as eight issues, negatived the plaintiffs case that the sale deed or the will was procured by undue influence, The trial court, however held that the plaintiffs had proved that Mst Servi was not taken as a Khana Nashin daughter by Hamza Mir and therefore she was not entitled to inherit as such. As regards the question of custom no specific finding was returned by the trial court. Thus the plaintiff before the trial court failed to prove that the sale deed was an invalid transaction and succeeded in there respects. As regards issued eight which cogred the or question of presumption, the preemption, the trial court held that the same was not pressed and therefore decided this issue against the plaintiff. Against this degree both mst. Sarvi and Ahad Mir and others filed appeals to he District Judge. The two appeals were heard together by the District Judge and he upheld the judgment of the trail court and dismissed both the appeals. Hence these two second appeals to this court.

(3.) A perusal of the judgments, of the court below would show that on some matters the judgment is concluded by findings of act. Both the court below have concurrently found as a fact that the sale deed was a valid transaction and that Hamza Mir was no a person of an unsound mind. The appellate court has further held that there was no good evidence to show that any undue influence was practiced on Hamza by Akram or Sarvi either at the time of execution of the will or the sale, Both the courts below have held that Mat Seivi has not been able to prove to have been adopted as the Khana Nashin daughter of Hamza Mir and she was therefore not entitled to inherit the property left by him. The appellate court is silent on the question of preemption although a specific ground was taken before it by Ahad Mir and others in their memorandum of appeal.