1 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR OWP No.796/2017 Pronounced on: 11.02.2025 Mohammad Yasin Khan and another …….Appellant(s)/Petitioner(s) Through: Mr. M. S. Reshi, Advocate V/s State of J&K and others ……Respondent(s) Through: Mr. Syed Musaib, Dy.AG and Mr. Zahid Noor, GA CORAM: HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT 1. Petitioners pray to quash order dated 30.03.2013 passed by respondent no.2. They also seek to quash Order dated 17.05.2017, passed by respondent no.1. They also pray to direct respondent not to interfere in the peaceful possession of petitioners over the land for which mutation no.106 dated 10.01.1981 and mutation no.147 dated 25.09.1987 have been attested after following due procedure and law prevalent at that relevant point of time. 2. The petitioners’ case is that common ancestor of petitioners and respondent no.4 died in the year 1981, leaving behind landed property. They also state that a report in mutation register of Patwar and Girdawar (column 14) was made mentioning that petitioners approached revenue authorities and revealed that as their father died leaving behind landed property which devolved upon them which be mutated in their favour. Petitioners stated in their application that successors/inheritors of property were his sons and wife and a daughter and that daughter/ respondent no.4 2 had married as Khana Berun, outside the parental house, and since village was governed by customary law, therefore, mutation be passed in favour of petitioners and widow of Ahsan Khan only. According to petitioners, a detailed enquiry as per Standing Order 23-A was conducted, and statement of villagers including Lumberdar and Chowkidar was recorded, and in presence of respectable persons of the village mutation was attested vide no.106 on 10.01.1981. Subsequently, one more mutation was attested after mother of petitioners died, leaving behind her share in the property which devolved upon legal heirs viz. petitioners and accordingly as per report submitted by Patwari and Girdawari that Mst. Zaina widow of Ahsan Khan had died leaving behind legal heirs and accordingly mutation was attested vide no.147 on 25.09.1987 in favour of petitioner herein. According to petitioners, respondent no.4, after fifteen years, challenged mutations in an appeal before respondent no.2, who without seeking condonation of delay and in total derogation of law, has set-aside mutations bearing no.106 dated 10.01.1981 and no.147 dated 25.09.1987 and remanded the case back to Tehsildar concerned for detailed enquiry with a direction to attest the mutation afresh under Muslim Personal law in presence of necessary parties. Petitioners challenged order dated 30.03.2013 before respondent no.1 in a revision petition, but he dismissed the revision by virtue of order dated 17.05.2017. Hence this writ petition. 3. Reply has been filed by respondents. 4. I have heard learned counsel for parties and considered the matter. 5. Learned counsel for petitioners has stated that respondent no.1 while passing the impugned order has admitted that respondent no.2 has erred in not condoning delay before deciding the case as it was mandatory upon 3 the appellants to file the application for condoning delay before filing the appeal and same was to be decided by respondent no.2 before passing order impugned. He also avers that there is not a whisper about illegality committed by the attesting authority in effecting mutation more particularly when Standing Order 23-A and Rule 46 thereof was complied with. According to learned counsel, respondent no.1 has in a mechanical manner applied Shariat Law to the cases which were pending before application of Shariat Act. Respondent no.1 by passing impugned order has usurped the powers of civil court. 6. Appeals were filed by respondent no.4, Mst. Sara, against mutations no.106 and 147, inter alia, on the grounds that Naib Tehsildar, Bandipora, without giving any information through notice or summons to her, being daughter/legal heir of deceased, attested mutation in favour of appellants and that Naib Tehsildar neither procured her attendance under Standing Order 23-A nor he used his powers to enforce her attendance despite the fact that Patwari concerned depicted her in pedigree table as heir of deceased estate holder. In rebuttal, petitioners pleaded that property in question was in their possession and they were using its usufructs since decades together and respondent never stacked her claim regarding the share of inheritance. Additional Deputy Commissioner, Bandipora – respondent no.2 has said that it emerges that respondent herein – a legal heir has been excluded from inheritance on the presumption of alleged custom, which has neither been pleaded nor proved in a particular manner but has been adopted in derogation of Muslim Personal Law and infringement of legal rights of respondent, besides mutation has been conducted in ex parte, in derogation to provisions of Standing Order 23- 4 A and reasonable opportunity has not been given to respondent to plead her stand. It has also been noticed and pointed out by respondent no.2 that in terms of mutation nno.106 widow has inherited the share of her deceased husband, Ahasan Khan, as equal to the share of the son, which is unknown both to Customary law as well as Muslim law and that widow is entitled to inheritance of her husband to the extent of 1/8th in presence of other legal heirs under Muslim Law. 7. Against order of respondent no.2 dated 30.03.2013, petitioners herein preferred a revision petition titled as Mohammad Yasin Khan and another v. Mst. Sara and others, before respondent no.1, stating therein that properly left behind by their father and mother devolved upon sons only and daughter (respondent no.4 herein) is excluded from the said property. Respondent no.1 made reference to judgement of this Court dated 19.08.2011 passed in LPA no.078/2010 titled as Ahad Sheikh v. Murad Ahmad as regards applicability of Muslim Personal Law in all the matters of succession where parties are Muslims and held that it is only Muslim Personal Law that would govern the succession in the instant case. 8. The claim of the petitioners that their sister – respondent no.4, namely, Mst. Sara, is not entitled to inherit her parents in view of prevalence of custom, is absurd and irrational. This Court has already set at rest all the issues that have arisen in the instant case, in a writ petition, being OWP No.890/2010 titled as Ghulam Ahmad Bhat and others vs. State of J&K and others decided on 17.12.2024. The said judgement squarely covers the case in hand as well. 9. It is worthwhile to add here that in Islam the distribution of inheritance is to be made on the principle of the nearest. Since children of the deceased 5 and his parents are the nearest, therefore, they inherit under all conditions. These relations are the nearest and most direct of all relationships that human beings have, others being indirect. The Holy Quran directs that for a male there is a share equal to that of two females. Thus, the Holy Quran demonstrates visible concern to ensure that the girls are given their share when it mentions the share of girls as a basis for determining the share of boys. In other words, instead of saying “for two females there is a share equal to that of one male”, it has elected to say “for a male there is a share equal to that of two females”. Those who do not give share(s) to sister(s) on the excuse that sister(s) have forgone their right should keep in their mind that they are in error. The sisters usually do not forgo their rights as they know that they are not going to get anything away inasmuch as they think why to create bad blood between brothers and sisters. Such an act of forgiving is not valid Islamic law. Their claim remains due against brothers and those who usurp inheritance have been called as terrible sinners. 10. Insofar as provisions of Standing order 23-A is concerned, the same has not been followed muchless complied with in its letter and spirit while passing mutations excluding the daughter to inherit property of her parents. 11. For all what has been said above, the instant writ petition is without any merit and is, accordingly, dismissed. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 11.02.2025 ‘Imtiyaz’ Whether approved for reporting? Yes/No.