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Civil Appeal No.1 of 1986, decided on 10th November, 1987.

(On appeal from the Judgment of the High Court dated 29 5 1982, in Civil Appeal No.21 of 198l)

Succession Custom Devolution of estate of a Muslim residing in Jammu and Kashmir before 1947 Prior to 1947, Muslims residing in State of Jammu and Kashmir, held, were governed by personal law Party to such succession, however, could plead and prove special custom prevailing in the family.

Jalal Khan"s case P L D 1970 AJK 88 ref.

Succession Mutation Duties of Revenue Officer while sanctioning mutation of succession stated Revenue Officers, held, were enjoined upon to follow rule of succession prevailing in the family, unless where exception to that rule was pleaded before him Ordinarily Revenue Officer while attesting mutation had to sanction same in favour of parties by applying personal law Where special custom was pleaded before Revenue Officer, it was necessary for him to consult record of rights to find out as to whether such. Custom prevailed in the family and on" failure to find out such evidence to adhere to Muslim Law of inheritance.

Mutation Mutation proceedings Nature and object of Mutation does not create title in favour of any, person nor does it, affect adversely right of a party Mutation proceedings being summary in nature do not determine rights of parties as it is not within competence of Revenue Officer to decide intricate question of law relating to succession to property Where question of right or title to property was raised before Revenue Officer, same would be dealt with in summary manner to his satisfaction Such questions, however, were to be finally decided by a civil Court of competent jurisdictionWhere in a case no dispute of title or right was raised before Revenue Officer, at time of sanctioning mutation, he was not enjoined upon to consider importance of a previous mutation.

Succession Custom Question of succession, determination of Duty of Court Where question of succession to the estate of deceased was brought before Court, such Court, held, would be competent to examine rule of succession in its entirety and to give conclusive decision Subordinate Courts and High Court in perspective of such legal position were right to hold that plaintiffs in absence of convincing evidence in support of Customs could not succeed to exclude other heirs entitled to succeed under personal law.

Ss. 74 & 78 Public documents, exclusion from Orders and decisions of Courts and Revenue Officers, functioning under the Government of occupied part of State, held, could not be protected by provisions of Ss. 74 & 78 of Evidence Act Such document comprising mutation however, did not disclose that alleged Custom to succeed to the estate of father as "Khana Nashin daughter" to the exclusion of other married daughters was supported by record of rights or "Riwaj e Aam" or oral evidence produced before Revenue Officer during proceedings of mutation.

S. 42 A Appeal to Supreme Court Question of succession to estate of Muslim deceased Appellant failing to prove Custom as rule of succession in the family in preference to personal law Appeal being devoid of merit was dismissed in circumstances.

Basharat Ahmed Sheikh for Appellants.

Ch. Muhammad Sharif Tariq for Respondent No. 1.

The appeal raises the question of succession to the estate left by Fateh Muhammad deceased. It is admitted that the parties are legal heirs of Fateh Muhammad. However, the plaintiffs appellants have brought their claim for entire estate to the exclusion of respondents on the basis of mutation No.22 attested in their names on December 22, 1962 in occupied part of the State.

2. It is averred that Fateh Muhammad the last owner of the property in dispute died in 1944 A.D. Mst. Hussain Bi widow, Mst. Muhammad Bano, Mst. Nasib Begum, Mst. Anwar Begum and Mst. Ali Begum daughters succeeded him. On account of Cease Fire Line the suit land formed part of occupied area as such according to the plaintiffs mutation No.22 was attested by Revenue Officer in favour of Mst. Hussain Bi widow and Muhammad Bano daughter to the exclusion of other daughters. In 1973 when the Cease Fire Line was readjusted and realigned the suit land situate in village Datot formed part of Azad Jammu and Kashmir. The Revenue Officer attested disputed mutation No. 496 on December 10, 1973 in favour of the parties under personal law. Mst. Mussain Bi widow and Mst. Muhammad Bano feeling dissatisfied with the Order of sanction of mutation No. 496 brought a suit for declaration in the Court of Sub Judge Nakyal on October 1, 1979. It was averred that mutation No. 496 was ineffective, inoperative and illegal as it could not be attested in favour of the parties in presence of earlier mutation No.22 by which the plaintiffs alone succeeded to the estate of deceased. Mst. Anwar Begum one of the defendants admitted the suit of plaintiff in her written statement dated October 17, 1979 and also made a statement to that effect. Mst. Ali Begum was residing in Indian occupied part of the State as such she was proceeded ex parte on December 15, 1979. Mst. Nasib Begum contested the claim of plaintiffs by supporting the impugned judgment. The trial Court decreed the suit. In appeal the District Judge reversed the decision of the trial Court. In second appeal the learned Judge in the High Court maintained the decision of the District Judge. The District Judge and the learned Judge in the High Court arrived at the conclusion that mutation No.22, sanctioned by the Revenue officer in occupied part of the State was not admissible in evidence as it was in disregard to the provisions of Section 74 of the Evidence Act. The view was supported by an authority of Jalal Khan"s case (P L D 1970 AJK 88). Mr. Basharat Ahmed Sheikh, the learned counsel for the appellants contended that the District Judge and the learned Judge of the High Court were misled to exclude Ex. PC copy of mutation No.22, from evidence following the dictum in Jalal Khan"s case and emphasized that copy of mutation was admissible in evidence. Moreover, it was argued that in presence of a mutation second mutation could not be attested under law.

3. It is un-denied that prior to the War of liberation in 1947, the Muslims, in matter of succession, were governed by personal law but it was open to a party to plead and prove special custom prevailing in the "family. Fateh Muhammad as admitted by the parties in their pleadings, died in 1944 A.D., thus, ordinarily his estate devolved on the parties under personal law. Nevertheless it was open to the parties to plead and prove special custom. It appears from the record that mutation was not sanctioned prior to the war of liberation of 1947, as it was attested in 1962. Under the provisions of Land Revenue Act and rules, the mutation proceedings are summary in character. The mutation Officer was enjoined upon to follow the rule of succession prevailing in the family unless some exception to that was pleaded before him. In present case, ordinarily, the Revenue Officer who attested the mutation, had to sanction it in favour of the parties by applying the personal law. In case special custom was pleaded before him, it was necessary to consult the record of rights to find out as to whether such custom prevailed in family and on failure to find out such evidence to adhere to Muslim Law of inheritance. On perusal of the mutation it does not appear that" either of the aforesaid methods was followed; rather it looks that the Revenue Officer attested mutation No.22 in favour of plaintiffs to the exclusion of other daughters, as they had married by the relevant time. Be as it may, entries of the mutation, were not incorporated in Jamabandi in practice at the time and Jamabandi prepared subsequent thereto. In view of aforesaid position when the suit land formed part of Azaf Kashmir on readjustment of Cease Fire Line, the Revenue Officer of Kotli, Azad Kashmir in realisation of his duty, to bring the entries on record of rights upto date, attested mutation No.496 in the name of parties by following the personal law. Record does not show that the Revenue Officer at the time of sanction of impugned mutation was in know of mutation No.22. The plaintiffs in their evidence equally do not disclose that the Revenue officer who attested mutation in dispute, had the knowledge of the alleged previous mutation. In the circumstances, we do not find fault with the action of Revenue Officer resulting in sanction of mutation in dispute. Therefore, the question which now arise for decision of this Court is as to whether the impugned mutation, under the circumstances described above, was attested in conformity to the rules of Revenue Law or not The learned counsel for the appellant was unable to satisfy us that the impugned mutation was sanctioned in derogation to any provision of law. Our answer is, therefore, affirmative.

4. It is an accepted rule of law that mutations do not create title in favour of any person nor do they affect adversely the rights of a party. The mutation proceedings are summary in nature. These proceedings do not determine the rights of parties as it is not within the competence of Revenue Officer to decide intricate question of law relating to succession to property the subject of mutation. Whenever, the question of right or title to the property is raised before the Revenue Officer he deals it in summary manner to his satisfaction. But such questions are finally decided by a Civil Court of competent jurisdiction. In present case no dispute of title or right was raised before the Revenue Officer, therefore, the Revenue Officer who sanctioned mutation in question was not enjoined upon to consider the importance of previous mutation.

5. Mr. Basharat Ahmad Sheikh, the learned counsel invited our attention to the finding of the learned Judge in the High Court and argued that the propriety of mutation No.22 was not, challenged by the defendant respondents as such it was not reasonable to declare that the mutation was illegal and ineffective. We agree with the learned, counsel that mutation Np.22 was not directly challenged by the defendants through a regular suit but the fact remains that on sanction of mutation No.496, plaintiff appellants brought a suit for declaration claiming the suit property to the exclusion of defendants respondents. Therefore, once the question of succession to the estate of deceased one way or other, was brought before the Court, it was within the competence of Civil Court to examine the proposition in its entirety and to give conclusive decision. In this perspective of the proposition subordinate Courts and the learned Judge in the High Court were right to hold that the plaintiffs, in absence of convincing evidence in support of custom could not succeed to exclude the respondents, to succeed to the suit land.

6. In operative part of this Order it is mentioned that the parties could claim succession to the estate under personal law or custom, if any. It is un-denied that under personal law the respondents are equally entitled to inherit the estate of their father. The rule of law is that when a party pleads custom vis a vis personal law, the onus is on such party to prove the alleged custom. In the present case, the plaintiffs pleaded no special custom to succeed to the estate of the deceased and merely relied upon mutation No.22. Therefore, precisely it is not a case of special custom. Be as it may, even if it is accepted for the sake of argument that the case of the plaintiffs appellants rests on special custom on the basis of which mutation No.22 was sanctioned it was enjoined upon them to prove such custom by satisfactory evidence. It is undenied that the oral evidence consisting of testimony of Hussain Bi plaintiff, Fateh Alam and Fateh Muhammad, confined to support attestation of mutation No.22 and nothing beyond that. Mst. Muhammad Bano who claimed her title in the property as daughter "Khans Nashin" failed to appear as a witness to support the alleged custom. Ordinarily she was the proper person to support the alleged custom as she was presumed to possess first hand knowledge of it. Her failure to appear as a witness in support of the custom, raises a strong presumption against her. Mst. Hussain Bi was the next proper witness to prove the alleged custom. We have perused the testimony of Mst. Hussain Bi. She has not pleaded special custom prevailing in the family. She deposed that Mst. Muhammad Bano was "Khans Nashin daughter" as her husband was "Khans Damad". In addition to that no instances of special custom in the family were quoted by this witness. The oral evidence, therefore, does not support the case of plaintiffs. Document Ex.PC was excluded from consideration as according to the learned Judge in the High Court it was not admissible in evidence under section 74 of Evidence Act. It is already noted that Ex.PC is copy of mutation No.22. The mutation was sanctioned by Revenue Officer of the Government of occupied part of the State. The Orders and decisions of the Courts and Revenue Officers functioning under the Government of occupied part of State are not protected by the provisions of sections 74 and 78 of Evidence Act. Even if it is accepted for the sake of argument that Ex.PC can be looked into as relevant piece of evidence even then in our estimation this document does not support the case of plaintiffs. This is so as the mutation Ex.PC does not disclose that the alleged custom prevailed in the family. It does not disclose that the alleged custom to succeed to the estate of father as "Khans Nashin daughter" to the exclusion of other married daughters was supported by record of rights or "Riwaj e Aam" or oral evidence produced before the Revenue Officer during the proceedings of mutation. In absence of satisfactory evidence, Ex.PC even if considered as admissible evidence, is not helpful to the case of plaintiffs appellants.

7. It is interesting to note that Mst. Hussain Bi who appeared in support of the claim of plaintiffs, in her cross examination deposed that at the time of death of Fateh Muhammad, Muhammad Bano plaintiff was four years old. She married two years after the war of Liberation of 1947. It was elaborated that the first wife of Dil Muhammad was Ali Begum who was divorced in 1947 and two years thereafter Muhammad Bano and Dil Muhammad were married. This amply proves that Muhammad Bano was not "Khans Nashin daughter" at the time of death of Fateh Muhammad. Therefore, the evidence led by plaintiffs completely negates the alleged title of plaintiff by virtue of special custom.

There is no force on the appeal, it is, therefore dismissed with costs.

A.A./200/A Appeal dismissed.

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