Srinagar- Observing that Quran bestows right of inheritance first to female then to male survivor, the High Court of J&K and Ladakh has said that a Muslim daughter cannot and could not be expelled by any excuse or pretext to inherit the property of her father.
A bench of Justice Vinod Chatterji Koul made the observations while dealing with a “pathetic” case of a woman, who sought share from her father’s property being biological daughter some forty-three (43) years back but died midway. Her children stepped her in that race who are also still dreaming to have had their mother’s right matured and plucked albeit having a Division Bench judgement in her favour, the court said.
“The parties hereunto this controversy are Muslims. They are practising in daily and routine life all rituals of Islam strictly in accordance with Quranic injunctions and Ahadith, which include ablution for performing daily prayers; celebrations of Eids; performing Hajj and sacrifice of lamb/camel; paying Zakah; burying of dead body in strict accordance with Islam,” the court said, adding,” “All these acts and activities are being performed by parties strictly in conformity with Quranic commandments and Shariat, but it has been seen when it comes to giving share to daughter/sister, certain individuals come up with a pretext of Custom.” Such a practice, the court said, is even deprecated by Islam.
“It is worthwhile to mention here that Surah An-Nisa, Verse 11, of Holy Quran, stipulates inheritance laws, specifically distribution of inheritance amongst inheritors,” the court said, adding, “It provides guidelines on how the estate of a deceased person should be divided, taking into account the shares for children, spouse, and other family members.”
In this verse, the court said, it is ordained that the portion of the son will be two times that of the daughter.
“During the time of ignorance, the people were only giving from inheritance to their sons and daughters were being deprived of their portions completely, but in Islam such discrimination has been removed and daughters have been given their right of inheritance,” the court said, adding, “The son is given two times the amount of the daughter because he (son) is required to spend from his wealth to maintain the household and fulfil the needs of his wife and children and other family members, including parents”.
It is from Verse 11 of Surah An-Nisa, the court said, a duty, obligation, command, ordain, injunction to assign and give the share to the daughter(s).
“Even its plain reading, in my opinion, bestows the right of inheritance first to a female, then to a male survivor,” the court said, ordering that petitioners and/or their mother cannot/could not be expelled by any excuse/pretext to inherit the property.
The Case
It was 43 years back, i.e., in the year 1981, that mother of petitioners, filed a suit before the High Court and she was admitted to be entitled to share under Muslim Personal Law to the extent of 1/3rd but that suit was dismissed on the ground that no possession was claimed by her. Against that judgement and decree, an appeal was preferred by petitioners after the death of their mother before the Division Bench of the Court, which set-aside the Single Bench order.
The petitioners contended that they were misled by ill advice of an advocate and they instituted a suit for partition and possession on 3rd July 1996 and same was returned to them after a period of seven years on 30th December 2003, to be presented before Revenue Authority as the same was barred by Section 139 of the Land Revenue Act. Thus, petitioners presented an application under the Land Revenue Act. Settlement Tehsildar (Collector 1st Class) issued notices to other-side and after hearing parties and considering objections of other-side, attested mutation as per decree passed by the Division Bench. Brother of the deceased woman, feeling aggrieved of mutation, filed an appeal before Settlement Officer, Kashmir, who set-aside the mutation passed in favour of petitioners on “flimsy” grounds vide order dated 28th July 2009 by misinterpreting the Division Bench judgement.
Against the order of Settlement Officer, further appeal was filed before Settlement Commissioner, J&K, Srinagar, who dismissed petitioners’ appeal confirming the order of Settlement Officer.
“Revenue Officers, including Settlement Officer and Settlement Commissioner, have oblivious of Muslim Personal Law, passed impugned orders. In essence and core, they have declared (woman) as not being the daughter of late (………..). As a matter of fact, she has been excluded to inherit the property of her father’s property,” the court said, adding, “Not only this, Settlement Officer and Settlement Commissioner have sat over the judgement of the Division Bench of this Court and have tried to show as if the judgement of the Division Bench is a mere plain paper, having no force in law.”
The Division Bench, the court said, has held the woman entitled to inherit the share of property under Muslim Personal Law.
“The said judgement has long since attained finality and all that has been said and observed therein, in law, is a binding precedent and as a consequence whereof subordinate courts, which includes revenue courts, and in the present case Settlement Commissioner and Settlement Officer were under legal obligation to follow it in letter and spirit,” the court said, adding, “However, they have startlingly done contrary thereto. In such circumstances impugned orders or for that matter any other order/injunction/relief passed/given by any forum/ court in contravention to the aforesaid Division Bench judgement, per se, is/are illegal and is/are set at naught.”
Subsequently, the court allowed the appeal and quashed the order dated 8th December 2010 passed by Settlement Commissioner, J&K, Srinagar as also order of Settlement Officer dated 28th July 2009.
“Respondent-Revenue Department is directed to implement the judgement of the Division Bench of this Court dated 9th February 1996 ……..in letter and spirit, by giving petitioners the share of their mother, …., in the property of (woman’s father) to the extent of 69 Kanals 02 Marlas situate at Zainakote Srinagar) as per Muslim Personal Law within three months from today.”
The court also made it clear that in the event, brother of the woman has created any third party interest in the property in question, then in such situation, it shall be responsibility of respondent (the brother) to give landed property at some other place(s) having equivalent market value and/or according to the market value of the property in question.
Follow this link to join our WhatsApp group: Join Now
Be Part of Quality Journalism |
Quality journalism takes a lot of time, money and hard work to produce and despite all the hardships we still do it. Our reporters and editors are working overtime in Kashmir and beyond to cover what you care about, break big stories, and expose injustices that can change lives. Today more people are reading Kashmir Observer than ever, but only a handful are paying while advertising revenues are falling fast. |
| ACT NOW |
| MONTHLY | Rs 100 |  |
| YEARLY | Rs 1000 | |
| LIFETIME | Rs 10000 | |
