Iqbal Ahmad, Member
1. The Board is not unfamiliar with the question that arises for decision in the present appeal, & is alive to the fact that the answer to the question, as to whether a custom, at variance with the personal law of the parties to a litigation, relating to eucoession, has or has not been established, is more often than not, beset with difficulties of varying intensity. The appeal before the Board, however, presents little or no difficulty.
2. The dispute in the suit, which has culminated in the present appeal, was with respect to a portion of agricultural land that, at one time, belonged to one Sultan, son of Saboor, & the sole question that was debated & discussed in, & decided by, the Cts. below was, whether a custom at variance with the Muhammadan law of succession, alleged by the pltfs. was proved. The trial & the first appellate Ct. answered the question in the affirmative & decreed the pltfs.' suit. On appeal by the deft., the H. C., however, held that the custom set up by the pltf. was not proved & accordingly, modified the decrees passed by the first two Cts.
3. Sultan died in or about the year 1982, leaving a son named Qadir & a daughter Mt. Khatji, who is the resp. in the present appeal. It is common ground that, after the death of Sultan, 2/3rd of his property was entered in the revenue papers in the name of his son Qadir & 1/3rd in the name of Mt. Khatji. Qadir died in the year 1997 leaving a widow Mt. Zooni & then the entire property recorded in his name was mutated in the name of his widow Mt. Zooni, Zooni re-married in the year 1999 & on her re-marriage, the property recorded in her name was entered in the revenue papers in the name of Khatji deft.resp.
4. The pltf. applts. then filed the suit giving rise to the present appeal. They alleged that 'the deft. is not a Khana Nishin daughter, & neither under law nor custom the is entitled to inherit her brother Qadir's property'. These allegations were traversed by the deft.-reep., but the Cts. below unanimously held that the deft, was not a 'Khana Nishin' daughter, & this finding was not assailed before the Board. The cardinal question for decision, however, remains whether or not Mt. Khatji was entitled ''under law or custom to inherit her brother's property'
5. The custom relied upon by the pltf.-applts. was set out in Para. 6 of the plaint in which it was alleged that ''under the custom a sister cannot inherit property of her brother in the presence of near collaterals & the reversioners'. It is not disputed that the pltfs.-applts. ate the collaterals of Qadir. It is also clear that, in accordance with the Muhammadan law relating to succession, the reap. is entitled to a half share in the properties left by Qadir & the pltfs. are entitled to the remaining half, & the decree passed by the H. C. is in conformity with that law.
6. The question for consideration in the present appeal, therefore, is whether the custom set up by the pltfs., & embodied in Para. 6 of the plaint, was established.
7. That the custom alleged by the pltfs. is a novel one, cannot be disputed & in the absence of clear & cogent evidence in proof of such a custom, its existence cannot be held to be established. It would be noted that on the death of Sultan the devolution of his property was in accordance with the rules of succession ordained by Mubammadan law even though the deft. was not a 'Kkana Nishin' daughter, l/3rd of Sultan's property was mutated in her name. Nobody ever questioned her right to the 1/3rd property recorded in her name, & it is admitted on all hands that she has been in undisturbed possession of the same for a period of about 20 to 25 years. Qadir was alive for about 15 years after the death of his father & even he, during his lifetime, never questioned the right of Khatji to the property that was mutated in her name. All this furnishes strong evidence of the fact that, in the matter of succession, the family was governed by its personal law. On the death of Qadir, however, his entire property was entered in the name of his widow Mt. Zooni & this, no doubt, indicates the existence of a custom at variance with the provisions of Muhammadan law relating to succession. Be that as it may, the parties were agreed that Zooni was entitled to remain In possession of the entire property of her husband only for her life time or till her remarriage & that on the termination of the right of Mt. Zooni, the rightful heir was entitled to succeed to that property. The succession opened on the re-marriage of Mt. Zooni & the deft., being under the Mubammadan law one of the heirs of Qadir, was entitled to a half share in the property in dispute, unless a custom disentitling her to that; share was proved.
8. It is well-settled that a custom supersedes the personal law so far as it is established but, as regards matters outside such established custom, the personal law must prevail: vide Ramnundun. singh v. Janki Kour, 29 Cal, 828 : (29 I. C. 178 P.C.). It follows that the custom to which the succession of Zooni to the entire property of Qadir may be referable, can be of no avail to the pltfs. The custom that the pltfs. had to prove, in order to entitle them to the reliefs prayed for by them, was a specific custom to which reference has already been made. No specific instances of such a custom were established by the evidence adduced by the pltfs. The evidence produced by the pltfs. was noticed by the learned Judges of the H. C. & the reasons given by them, for holding that that evidence fell short of establishing the existence of the custom relied upon by the pltfs., appear to the Board to be satisfactory.
9. Reference wag made by the pltfa.' counsel to questions 48, 49, 63, 64 & 69 & the answers thereto in Sant Ram Dogra's Code of Tribal Customs in Kashmir. Question 48 relates to the devolution of inheritance upon 'male lineal descendants how low soever' and is foreign to the question that falls for decision in the present appeal. Similarly, questions 49 & 64 have no bearing to the question under consideration by the Board. Question 58 is formulated as follows: 'In what circumstences are daughters entitled to inherit?' The question of the succession of a daughter was not in issue in the present litigation & question 58 & the answer thereto is obviously irrelevant. Great reliance was however, placed on question 69 which is as follows:
'Does the property ever devolve upon sisters or upon sisters' none? If upon sisters' sons, how are their shares computed?'
The answer to the question recorded by Mr. Dogra is far from illuminating. Apart from this there is nothing in the answer to that question to show that a sister is not entitled to get the legal share in her deceased brother's property after the termination of the so called life estate of the brother's widow.
10. It is to be remembered that, in the absence of proof to the contrary, the presumption is that a person is governed by bis or her personal law in matters relating to succession, inheritance, mar riage, guardianship, etc, & the administration of such law, in such matters, is enjoined by Section 4, Sri Pratap Jammu & Kashmir Laws Consolidation Act (IV  of 1977). It follows that the very best possible evidence, & that of a high order, is needed to establish the existence of a custom in derogation of the personal law of the parties to a litigation. The more abnormal the custom pleaded, the heavier is the burden on the party alleging the same, & it is not permissible to infer the existence of such a custom simply on the basis of the existence of some other analogous custom which is not in conformity with the personal law of the parties.
11. The specific custom pleaded by the pltf. applts. in the present case, was not, in the opinion of the Board, established & the H. C. was right in recording a finding to that effect.
12. The Board would accordingly humbly advice His Highness that the decision of the H. C. be affirmed & this appeal be dismissed with costs.