Ali Mohammad vs Mst. Karima and Others

S.S. Sodhi, J.—The controversy here is with regard to law governing succession amongst Muslim Kambojs of village Jamalpura of Tehsil Malerkotla, namely ; whether custom or Muslim Personal Law applies. The contest being between the sons and daughters of Shahzada, who died on September 19, 1974 leaving behind the property in suit.

There is a conflict of judicial precedents in the matter, in that, in Babu and Anr. v. Halima (1983) 85 P. L. R. 335 it was held by J. V. Gupta, J. that Kambojs of Malerkotla are predominantly an agricultural tribe and are governed by custom in the matter of inheritance. G. C. Mital, J. on the other hand in Abdul Rahim and Ors. v. Yusaf and Ors. 989 85 P. L. R. 200. held that Mohammadan Kambojs of village Jamalpur, Tehsil Malerkotla are governed by Personal and not Customary Law, for the purposes of succession. It is this conflict of view that led N. K. Kapoor, J. to refer this matter to a larger Bench.

As mentioned earlier, the property in suit was owned by Shahzada, who died in September 1974. The plaintiffs here are the three daughters and son-Ali Mohammad while the defendant is the other son-Ali Mohammad of the said Shahzada. After the death of Shahzada, Ali Mohammad took possession of the property left behind by his father and now asserts his title to it, both, on the law governing succession applicable to the parties, as also a Will said to have been made in his favour by his father. According to the defendant. Ali Mohammad, the parties were governed by Custom and in terms thereof, daughters were not entitled to succeed to the estate of their father. The plaintiffs-daughters on the other hand, averred that the parties were governed by Muslim Personal Law, according to which daughters too are entitled to succeed to the estate of their father, though their share is not the same as that of the sons. The Will set up by Ali Mohammad was also contested.

The trial court held in favour of Ali Mohammad with regard to the law governing inheritance holding that Customary Law would govern. The Will set up by Ali Mohammad was, however, held to be invalid as it lacked the requisite consent of the other heirs.

The lower appellate court, differed and reversed the finding of the trial court holding that it was Muslim Personal Law that governs inheritance and the daughters too were thus entitled to succeed to their father''s property.

Both parties brought on record various instances in support of their respective pleas regarding the relevant law governing succession. These have been duly noticed and considered in the order of reference. These instances do not, however, call for discussion as they now stand over shadowed by the two judicial precedents referred to earlier, namely ; Babu and Abdul Rahim''s cases (supra).

In dealing with the question posed, it would be apt to bear in mind the observation of the Supreme Court in Mara and Others Vs. Nikko and Others, . "Custom in Punjab changes from district to district; tehsil to tehsil and pargana to pargana".

Seen in this light, the apparent conflict in Babu and Abdul Rahim''s cases (supra) would stand resolved inasmuch as while Babu''s case (supra) was with regard to Kambojs of Malerkotla, that of Abdul Rahim''s case (supra) concerned Mohammadan Kambojs of Jamalpura In other words. Babu''s case can and must be construed as setting-forth the general rule governing inheritance amongst Kambojs of Malerkotla. Abdul Rahim''s case (supra), on the ether hand, confines itself to the rule governing inheritance amongst Muslim Kambojs of Jamalpura only and not generally the Mohammadars of Malerkotla. So considered, no conflict survives

Having regard therefore, to the judicial precedent provided by Abdul Rahim''s case (supra) and the instances of such law having been applied amongst Muslim Kambojs of Jamalpura, as noticed and considered in the order of of reference, there can be no escape from the conclusion that in the matter of succession, parties here are governed by Muslim Personal Law and, therefore, the daughters of Shahzada are, each, entitled to 1/7th share while both their brothers would be entitled to l/7th share while both their brothers would be entitled to 2/7th share each.

In the result, the plaintiffs are hereby granted a decree for joint possession as prayed for by them. The suit of the plaintiffs is consequently decreed with costs throughout. The reference too stands answered accordingly.