Srinagar: The long struggle of a Muslim woman from a city suburb to acquire her share from the property of her father bore fruit today after 43 long years as the J&K High Court did away with a ‘crafty’ and mechanical order by the Revenue department in her case.
Mst Mukhti, daughter of Munawar Ganaie of Zainakote Srinagar, was in 1981 denied her share of property by her brother Gafar Ganaie, which forced her to file a suit before the J&K High Court. She was admitted to be entitled to share under Muslim Personal Law to the extent of 1/3rd of the entire property, but that suit was dismissed on the ground that no possession was claimed by her (Mst. Mukhti).
After an appeal, the case went to the division bench which said that the lady was entitled to her share in the property of her father, which was in possession of her brother Gafar Ganie.
The brother, Gafar Ganie, had filed an appeal before the Settlement Officer, Kashmir, against mutation of one-third of the property in favour of Mukhti. The officer set aside the mutation dated 28th July, 2009 by misinterpreting the division bench judgement of J&K High Court in favour of the lady.
Mst Mukhti expired mid-way and her children stepped in into the matter.
“Mother of petitioners (Mst. Mukhti) was a co-owner and co-sharer of the property left behind by her father. Mere rhetoric that petitioners or their mother had not sought a particular relief in a particular style/motion/petition/suit/appeal will not divest her and her children from the right of inheritance,” Justice Chatterjee Koul pronounced.
He observed “it is very painful to say that a brother can be heard saying that his sister is entitled to property of his/her father only when she moves a suit in a particular style/manner and then only she can be, after long drawn litigation, entitled to inherit property. Such absurd contentions are unacceptable, rather depreciative”.
He said “Quranic injunctions command inheritance of daughter in the property left behind by her father, and referred to the Ayat 11 of Surah Nissa of Quran: “The share of a son is equal to that of two daughters; then if there are only daughters (two or) more, they are entitled to two-thirds of the inheritance; if there is only one daughter, her share will be one half….”
The judge noted “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 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 fulfill the needs of his wife and children and other family members, including parents.”
The division bench in 1996 in clear-cut terms had held that writ petitioners (children of Mukhti) are entitled to inherit the share of property under Muslim Personal Law.
It has also been made clear that Mukhti, is sister of respondent and being common lineal descendant, she is a co-owner and co-sharer of the property and that the parties are Muslims and are governed by the Muslim Law.
After hearing the counsels and perusing the ‘archaic’ file, Justice Chatterjee Koul held “procedural defects and irregularities which can be cured, should not stand in the way of justice. Whenever there is a conflict between substantial justice and hyper-technicality, then substantial justice is to be preferred to avoid defeat for the ends of justice.”
Attestation of mutation is only for updating the revenue records and such records are maintained for fiscal purposes. Upholding or setting-aside the order of mutation will not deprive a person from having recourse to other remedies as may be available and permissible, said the judge.
He noted “Revenue Officers, including Settlement Officer and Settlement Commissioner, have, oblivious of Muslim Personal Law, passed impugned orders. In essence and core, they have declared Mst. Mukhti as not being the daughter of Late Munawar Ganie. As a matter of fact, she has been excluded from inheriting the property of her father’s property. Not only this, the 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 judge directed the Revenue Department “to implement the 1996 judgement of the division bench of case passed in letter and spirit, by giving petitioners the share of their mother, Mst. Mukhti, in the property of Munawar Ganai (which is property/land falling under Khewat no. 48148 to the extent of 69 Kanals 02 Marlas of land situated at Zainakote Tehsil Srinagar) as per Muslim Personal Law within three months from today.”
