Lala and others vs Rasula

Kilam, J.—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.

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.

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 donor's 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.

Now in order to bring the parties within the ambit of the custom pleaded by the plaintiff-appellant, the trial Court has interpreted ""Mutfark

Kamim"" as inclusive of a tailor. In the opinion of the trial Court a tailor is also a Kamin. Where-from has the trial Court got this meaning of the

word ""Kamin"" and how it has assigned this meaning to the word ""Kamin"", is not clear from its judgment.

A custom which seeks to abrogate the personal law of the parties must be clear and cogent. Such a provision cannot be deduced from a vague

and undefined phrase as ""Mutfark Kamin"". Under these circumstances, I find that according to the so-called Rivaj-i-am referred to above, the

parties cannot be brought within the ambit of the custom pleaded by the plaintiff-appellant.

The oral evidence led by the plaintiff is equally vague and undefined. No instances regarding custom have been given by the plaintiffs witnesses,

and as such it is very difficult for me to place any reliance on their statements.

Under these circumstances, I find no force in this second appeal which is rejected with costs.