Permod Kohli, J.
1. One Khazir Wani was the Estate Holder of village Pinglishi. He died leaving behind Reshu, son, Mst. Zaina and Mst. Fatta daughters. His estate in the village devolved upon his legal heirs mentioned above in accordance with the Muslim Personal Law. The mutating officer attested mutation Order No. 573 in respect to the estate of Khazir Wani. While attesting mutation, Mst. Fatta one of the daughters was excluded from inheritance on the ground that she was married outside her parental home. This exclusion was allegedly on the basis of some custom. The petitioner herein is the son of Mst. Fatta and after her death, he challenged the mutation Order No. 573, dated 29.11.1971 before the Financial Commissioner, who dismissed the revision vide his order dated 29.11.1994, upholding the mutation. Review petition was preferred before the Financial Commissioner, which also came to be rejected vide judgment dated 20.10.1976. The Financial Commissioner while rejecting the review held that there is no error apparent on the face of the record and otherwise also, the review petition is not maintainable having been filed beyond the period of limitation of 90 days as prescribed under law. All these orders i.e. mutation Order No. 563, dated 29.11.1971, order of Financial Commissioner dated 29.11.1994 in the revision as also order dated 29.10.1996 passed in review petition have been assailed in the present writ petition.
2. Petitioner has challenged the mutation primarily on the ground that the mutating officer has attested the mutation in gross violation of the standing Order 23-A as also the principles of natural justice. Mst. Fatta, predecessor-in-interest was not summoned by the mutating officer and the mutation was attested in his absence without affording any opportunity of being heard to her, therefore, the mutation is bad in law and liable to be quashed.
3. The other argument of petitioner is that Mst. Fatta was wrongly and illegally excluded from the inheritance on the plea of alleged custom which deprives a female married outside her parental home. It is contended that there is no such custom in the family or the village and the parties were governed by Muslim Personal Law, whereunder Mst. Fatta, mother of the petitioner was entitled to a share in the estate of her father. It is also submitted that Mst. Zaina, the other daughter of Khazir Wani was not a Khananisheen daughter and thus she was conferred undue benefit by the mutating officer. The revisional authority did not consider both these questions viz. That Mst. Fatta was not heard by the mutating officer and secondly that no custom was ever pleaded or established which excluded Mst. Fatta from inheritance of the property of her father.
4. Respondent No. 2 was deleted from the array of respondents vide order dated 19.9.2001, after his death on the ground that the respondent No. 3 is the only heir of respondent No. 2 who is already on record.
5. Respondent No. 3, the contesting respondent, has filed the counter affidavit. She has pleaded that Mast. Fatta, mother of the petitioner was not entitled to inherit the property of her father, she being married outside her parental home. This was in accordance with the custom prevailing in the village and thus she was rightly excluded from the inheritance of her father by the mutating officer. Such custom is said to be prevailing in the village of tehsil Tral and especially in the village where the parties were residing. It is further pleaded that she (respondent No. 3) being Khananisheen daughter was given share of her father's property to the exclusion of mother of the petitioner.
6. I have heard learned counsel for the parties and perused the record.
7. From the mutation Order No. 573, dated 29.1.1971, it is apparent that neither Mst. Fatta nor the present petitioner were summoned by the mutating officer nor were they present before him at the time of attesting the said mutation. The mutation officer simply recorded the statement of Reshu son of Khazir Wani and attested the mutation. The mutation order simply says that Reshu who is present has made a statement that Khazir has left behind one son i.e. he himself and two daughters Mst. Fatta and Mst. Zaina. Mst. Fatta is married outside her parental house, whereas Mst. Zaina is married in the parental home and is also in possession of the estate of deceased. No reference was made of any custom nor Mst. Fatta was present before him. After examining the mutation, I am of the considered view that neither Mst. Fatta nor the present petitioner were summoned or called by the mutating officer at the time of attestation of the mutation. The mutating officer has also not recorded about any custom whether in the family or the village nor there was any material or evidence before him regarding the existence of any custom which excludes from inheritance a daughter married outside her parental house.
8. The revisional authority while passing the impugned order dated 29.11.1994 as also order dated 29.11.1996 in the review petition did not record any finding regarding existence of any custom on the basis of any evidence or material. The revisional authority simply stated that Mst. Fatta was married outside her parental home and thus she is not entitled to inheritance. Similarly while considering the review petition, no finding has been returned regarding existence of any custom in the village or family. The Financial Commissioner while considering the review petition has observed that there is no evidence whatsoever to detract from the factum that Mst. Fatta from whom the applicant derives title to challenge the succession was a Khananisheen daughter or that the court has erred in reaching the conclusion for exclusion of Mst. Fatta from succeeding to the landed property of Khazir.
9. It is not disputed that the parties being Muslims, were governed by Muslim Personal Law. In the event the Muslim Personal Law is to be deviated on the basis of some custom, such custom was required to be specifically pleaded and proved before the mutating officer or for that matter any other authority that considered the issue. It is nobody's case that any custom was ever pleaded or established before the mutating officer or before the revisional/reviewing authority, nor is it evident from the orders passed by the authorities below that the custom was specifically pleaded and proved.
10. The question whether custom will prevail or the Personal Law, was considered by a Full Bench of this Court in AIR 1972 J&K; 105, wherein it has been held as under:--
'......... Some confusion has cropped up in the decision of cases wherein there is a controversy whether the personal law of the parties would apply or custom. Section 4 of the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1997, Act No. 17 of 1997 lays down. 'The laws administered and to be administered by Civil and Criminal Courts of the State of Jammu and Kashmir are and shall be as follows:--
(a) x x x x x x x x x x
(d) In questions regarding succession, inheritance special property of females, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, wakf, partition, castes or religious usages or institutions the rule of decision is and shall be as follows:--
'The Mohammadan Law where the parties are Mohammadans and the Hindu Law in cases where the parties are Hindus, except so far as such law has been by this or any other enactment, altered or abolished, or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority:
Section 5 of the same Act says that:--
'All local customs and mercantile usages shall be regarded as valid unless they are contrary to justice, equity and good conscience or have been, or shall be directed to be void by any competent authority.
These two sections read together would lead to the inevitable inference that customs and mercantile usage shall be regarded as valid unless they are contrary to justice, equity and good conscience or are otherwise declared void by competent authority. This being the legal position, even then, the learned counsel for the appellant begins by stating that the normal presumption is Hindus as the case may be. Personal law can be only ignored if a custom is proved, laying down the mode of succession in a different manner........'
11. The Hon'ble Full Bench also took notice of the division bench judgment of the court in case Mst. Zebi v. Resha Mir, J&K; LR Vol.4 page 254 and the judgment of Board of Judicial Advisors reported in JKLR Vol. 8 page 117 passed in appeal from the aforesaid division bench. The ratio of the aforesaid judgment as noticed by the Division Bench is as under:--
'In Mst. Zebi v. Resha Mir, J&K; LR Vol. 4 page 254 a Division Bench of this Court has held that succession could be governed either by a custom or by personal law because there could not be a two different and inconsistent rules of succession and inheritance. It has further remarked that:--
'It appears that some confusion exists as to whether a person who sets up a custom 'relating to succession can inherit under the Mohammadan Law. It is only when a custom is set up by a plaintiff which is not admitted by defendants and the plaintiff fails to prove the existence of the custom that the plaintiff would be entitled to succeed under the Mohammadan Law. In the absence of any custom governing succession, it is the personal law which would apply.
In this case again Pt. Sant Ram Dogra's Code of Tribal Custom in Kashmir has been referred to. This case went in appeal before the Board of Judicial Advisors (reported in J&K; LR Vol. 8 page 117). Their lordships set aside the finding of the High Court and remitted some issues to the trial court and their lordships held that where plaintiff was nominated by her mother as Dukhtar Khana Nishin but she failed to establish a custom under which she claimed as a Dukhtar Khana Nishin, the plaintiff was nevertheless entitled to succeed as a daughter simpliciter. Their Lordships further held that if the daughter failed to establish a custom under which she claimed as a Dukhtar Khana Nishin nominated by her mother. She is entitled to fall back upon Mohammadan Law and claim a share to which that law entitled her unless, of course, it is proved that by custom she is excluded by some other heir and that Mohammadan Law has been superseded by such custom to that extent.......'
12. Full Bench also considered the judgment delivered by another division bench of this Court reported in J&K; LR 23 (Vol. 12) which is to the following effect:
'If a daughter failed to establish a custom under which she claimed as a Dukhtar Khana Nashin nominated by her mother she is entitled to fall back upon Mohammadan Law and claim a share to which that law entitled her unless, of course it is proved that by custom she is excluded by some other heir and that Mohammadan Law has been superseded by such custom to that extent.'
13. Similarly another judgment was taken notice of by the Full Bench in Din Mohammad v. Karim Bibi, 3 J&K; LR 23 (Vol.3) page 122. The ratio of the said judgment is as under :--
'....... The Board of Judicial Advisors held that any modification of personal law should be specifically pleaded and evidence in support of it should be strictly construed. To supersede personal law custom is to be established as ancient, uniform and unambiguous. Their Lordships in the body of the judgment remarked:
'The Board have noticed in cases coming up before them that plea of custom is seldom couched in specific terms. It is pleaded in a sweeping manner that the parties are governed not by Mohammadan Law but by custom. It is of the utmost importance that custom relied on by a party in modification of personal law to which prima facie, every family is subject should be specifically pleaded......' In the case before Full Bench it was held that custom whereby Khana Nishin Dukhtar, resident daughter is entitled to inherit the property has been established....'
14. Applying the principles in the aforementioned judgments, it can be seen that the custom, if any, was whereby a daughter married outside her parental home can be excluded from inheritance was prevalent in the village/his family and since when such a custom has been in existence and/or is being followed by the concerned. In absence of there being any pleading and/or proof of existence of such a custom and its application to the parties, it cannot be said that there was any custom in existence which could have superseded the Muslim Personal Law.
15. Mst. Fatta being daughter of deceased Khazir Wani is not disputed, rather it is specifically admitted in the mutation as also subsequent proceedings. Even a pedigree of the family of Khazir is indicated in the mutation order. In absence of custom having been pleaded and proved, the parties were governed by Muslim Personal Law, where under a daughter has V4th share in the property of her father. The predecessor, in, interest of the petitioner namely Mst. Fatta could not have been deprived of her right of inheritance in the estate of Khazir, her father, on the basis of some fake plea of custom, neither pleaded nor proved.
16. In view of the above, I find that neither mutating officer nor the Financial Commissioner in revision or review has considered this aspect of the matter and the mutation as also the orders passed by the Financial Commissioner in revision and review are all liable to be set aside.
17. I order accordingly. As a consequence of the discussion, this writ petition is allowed, orders impugned in the petition are quashed and the petitioner is held entitled to inherit the estate of Khazir through his mother Mst. Fatta. He will be entitled to the share in the property as was available to his mother under Muslim Personal Law. No order as to costs.