Srinagar: A Single Bench of Jammu & Kashmir and Ladakh while dismissing a petition challenging the order of Joint Financial Commissioner (Revenue) held that ‘a mutation could not have been attested as per Customary law upon coming into being of the J&K Muslim Personal Law (Shariat) Act, 2007.’
Facts before the Court read that after the death of last estate holder (Father), a mutation was attested in 2010 in favour of son and daughter in equal Shares being the only legal heirs on the basis of Customary Practice, as the daughter was shown to have been married as a Khana Nisheen Daughter. The said mutation came to be challenged before Agrarian Commissioner/ADC in appeal on the ground that such a mutation could not have been attested in presence of the said Act.
The Appeal was allowed and the matter was remanded back to the Tehsildar for de novo enquiry. The said order came to be challenged in revision petition before the FCR which came to be dismissed and upheld the Order passed by the Additional Deputy Commissioner vested with the powers of Agrarian Commissioner/Collector setting aside the Mutation Attested in 2010 after coming into effect the J&K Muslim Personal Law (Shariat) Application Act of 2007 on the ground that such a mutation could not have been attested in presence of the said Act.
The petitioners before the Court Challenged the Order of FCR on multiple grounds including on the ground that the impugned order is illegal, unwarranted, unjustified, cryptic and perverse having been passed without appreciating the fact that inheritance opens and devolution operates instantly on the death of the estate holder qua his legal heirs and that both the legal heirs of the original estate holder upon his death devolved upon his two legal heirs viz Khana Nisheen Daughter and his son in equal shares, where after consequently said Mutation rightly came to be attested in respect of the above named legal heirs and that the said right of khana Nisheen Daughter however, could not have got extinguished by application of the Act of 2007 and that the said fact had been overlooked by the revisional forum.
The respondents on the other side objected the said proposition and that the respondents disputed the fact of said daughter having been married as Khana Nisheen Daughter but as a Khana Berun Daughter and, as such, the said estate would devolve upon legal heirs in the ratio of 2:1 in terms of the Act of 2007.
The court while taking note of Section 2 of the Said Act observed that A plain reading of the aforesaid Section 2 manifestly postulate that the Act of 2007 is enjoined upon to apply the Muslim Personal Law in all cases relating to the matters specified therein notwithstanding any customs or usages to the contrary, thus clearly signifying that the same shall stand made applicable to all the matter pertaining to the questions regarding inter-state succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including Talaq, Ila, Zihar, Lain, Khula and Mubarat, Dower, Guardianship, Gifts, Trusts and Trust properties.
The court held that although the matter of inheritance qua the landed estate of the original estate holder had opened immediately upon his death yet the devolution of such inheritance inasmuch as the shares therein have had to devolve upon his legal heirs under the law of inheritance of Muslims.
The Court accordingly dismissed the petition leaving it open to the parties to establish their respective claims qua the estate of their father in view of the pending Civil suit with respect to the issue of Claim of Daughter as Khana Nisheen Daughter. (via. CU)
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