Mst. Hajra Age 75 Years W/O Late Sh. Mohd. ... vs Financial Commissioner (Revenue)
2024 Latest Caselaw 101 j&K

Jammu & Kashmir High Court

Mst. Hajra Age 75 Years W/O Late Sh. Mohd. ... vs Financial Commissioner (Revenue) on 7 February, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                                   Sr. No. 6


                  HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                AT JAMMU


                                                               OWP No. 376/2019
                                                               CM Nos. 1857/2019
                                                               [1/2019].


Mst. Hajra age 75 years W/o Late Sh. Mohd. Akbar R/o Village                  ....Petitioner(s)
Lamber Tehsil Banihal District Ramban.


                            Through :- Mr. O.P. Thakur, Sr. Advocate with
                                       Ms. Anandita Thakur, Advocate.


            V/s
     1. Financial Commissioner (Revenue), J&K                               ....Respondent(s)
         Government, Jammu.
     2. Divisional Commissioner, Jammu.
     3. Tehsildar, Banihal.
     4. Sh. Gulzar Ahmed S/o Late Sh. Gh. Rasool R/o
         Village Lamber Tehsil Banihal District Ramban.
     5. Sh. Mohd. Ishaq S/o Late Sh. Gh. Rasool R/o
         Village Lamber Tehsil Banihal District Ramban.
     6. Sh. Sajad Ahmed S/o Late Sh. Gh. Rasool R/o
         Village Lamber Tehsil Banihal District Ramban.
     7. Sh. Bilal Ahmed S/o Late Sh. Mohd. Ramzan R/o
         Village Lamber Tehsil Banihal District
         Ramban.
     8. Sh. Hilal Ahmed S/o Late Sh. Mohd. Ramzan R/o
         Village Lamber Tehsil Banihal District
         Ramban.
     9. Mst. Eisha Begum W/o Mohd. Sharief Wani R/o
         Village Lamber Tehsil Banihal District Ramban.
     10. Mst. Tabia Begum W/o Sh. Mohd., Iqbal Gani
         R/o Village Lamber Tehsil Banihal District
         Ramban.
     11. Mst. Famida Begum W/o Nisar Ahmed Baig R/o
         Village Lamber Tehsil Banihal District Ramban.




                         Through :- Ms. Priyanka Bhat, Advocate vice
                                          Mrs. Monika Kohli, Sr. AAG for 1 to 3.
                                          Mr. A.G. Sheikh, Advocate for 4-11.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                            JUDGMENT

07.02.2024 (Oral)

1. In the instant petition filed under Article 226 of the

Constitution of India, the petitioner herein has implored

for the following reliefs:

(i) The judgment and order dated 16.01.2019 passed by the respondent no. 1 in file No. 649/FC-AP whereby the reference made by the respondent No. 2 has been accepted and the mutation order No. 1645 dated 10.05.1985 has been set aside;

(ii) The judgment and order dated 06.12.2017 passed by respondent no. 2 in file No. 67/Revision/2010-11 titled Mursa Begum Vs. State of J&K and ors whereby the reference for setting aside the above mutation order was made to respondent No. 1 and

(iii) Restraining the respondents No. 4 to 11 from interfering in respect of the land owned and possessed by the petitioner covered by mutation order No. 1645 dated 10.05.1985.

2. The facts under the shade and cover of which the instant

petition has been filed by the petitioner herein are as

under:

(i) One Mst. Azizi, mother of the petitioner and maternal

grandmother of the private respondents herein owned and

possessed landed property in village Chareel Tehsil

Banihal.

(ii) Said Mst. Azizi, after her death, was survived by two

daughters, namely, Mst. Hajra, the petitioner herein and

Mst. Mursa, the mother of the private respondents herein.

After the death of Mst. Azizi, her aforesaid estate came to

be inherited by her above daughters in equal shares and in

this regard, mutation No. 1373 dated 27.02.1979 came to

be attested.

(iii) Subsequent to the attestation of the mutation no. 1373

(supra), the petitioner herein claimed to be the exclusive

owner of the aforesaid estate of Mst. Azizi on the ground

that she was a Khana-Nisheen daughter as also on the

basis of a Will claimed to have been made by Mst. Azizi in

her faovur and consequently on the said ground

challenged the mutation No. 1373 before Sub Divisional

Magistrate, Ramban, who vide order dated 29.09.1980, set

aside the mutation No. 1373 and consequently directed

correction of the records while acknowledging the claim of

Mst. Hajra, the petitioner herein over the land under estate

of her mother.

(iv) Mst. Mursa, the other daughter of Mst. Azizi challenged

the order of the Sub Divisional Magistrate, Ramban dated

29.09.1980 before the Divisional Commissioner, Jammu in

an appeal which appeal, however, came to be dismissed for

non-prosecution on 17.12.1982 whereupon mutation No.

1645 came to be attested in favour of Mst. Hajra, the

petitioner herein alone on 10.05.1985 qua the land under

estate of her mother on the basis of order of Sub Divisional

Magistrate dated 29.09.1980.

(v) The aforesaid mutation No. 1645 dated 10.05.1985,

however, came to be challenged by Mst. Mursa before the

Divisional Commissioner, Jammu in a revision petition

which came to be decided by the Divisional Commissioner,

Jammu in terms of order dated 06.12.2017 on the premise

that even if Mst. Azizi, the mother of the petitioner herein

and the maternal grandmother of the private respondents

herein was competent to transfer the land under estate in

favour of Mst Hajra, the petitioner herein, she could have

transferred only her own share as the land under estate

was inherited property and not self acquired property and,

therefore, Mst. Azizi could not have deprived Mst. Mursa of

her share in the property and that even though Mst.

Mursa has challenged the mutation No. 1645 dated

10.05.1985 and did not challenge the order of Sub

Divisional Magistrate, Ramban dated 29.09.1980, yet

having regard to the facts and circumstances of the case,

the matter needs to be remanded to the Tehsildar, Banihal

for passing fresh order while setting aside the order dated

29.09.1980 passed by the Sub Divisional Magistrate,

Ramban.

(vi) The Divisional Commissioner, Jammu while deciding the

said revision petition on 06.12.2017 made a reference in

terms of Section 15(3) of the Land Revenue Act, 1939 AD

to the Financial Commissioner (R), Jammu for the

confirmation of the order consequent to which the

Financial Commissioner (Revenue), J&K, Jammu in terms

of order dated 16.01.2019 confirmed the order passed by

the Divisional Commissioner, Jammu dated 06.12.2017

and endorsed the direction of remand of the case to the

Tehsildar concerned for attestation of a fresh mutation.

(vii) The Financial Commissioner (Revenue), J&K, Jammu

while passing the order dated 16.01.2019 also noticed,

observed and concluded that Mst. Azizi had inherited the

landed property in question along with her brother,

namely, Lassu from their father, namely, Rehman Lone

and after the death of Rehman Lona, his estate had got

devolved upon Lassu and Mst. Azizi in the ratio of 2:1

strictly in accordance with the law of inheritance under

Muslim Personal Law. The Financial Commissioner,

Jammu, thus, opined that in the matter of succession, the

parties were governed by Shariat/inheritance law of

muslims and not by customary law and, therefore, the

exclusive claim of Mst. Hajra, the petitioner herein over the

land under estate as being a Khana-Nisheen daughter is

not tenable as the family is governed by

Shariat/inheritance law in matters of succession as the

concept of Khana Nisheen daughter, which was under

customary law, has been done away after coming into

being of the Shariat Act, 2007.

(viii) The Financial Commissioner, Jammu while passing the

order dated 16.01.2019 have had taken cognizance of

another fact that Mst. Hajra, the petitioner herein had also

lodged exclusive claim over the land under estate of her

mother Mst. Azizi on the basis of a Will which Will was

never brought on record and otherwise even if was in

existence could not have been enforced under Muslim

Personal Law beyond the share of 1/3rd.

(ix) The Financial Commissioner, Jammu in the order dated

16.01.2019 also took into consideration the plea of

limitation raised by Mst. Hajra, the petitioner herein qua

the revision petition filed by Mst. Mursa, the predecessor

in interest of the private respondents herein before the

Divisional Commissioner, Jammu and opined that the

mutation No. 1645 dated 10.05.1985 had been attested in

favour of Mst. Hajra, the petitioner herein in absence of

Mst. Mursa who was condemned unheard, therefore, the

plea of limitation raised by Mst. Hajra, the petitioner

herein becomes irrelevant and also that the officer who

attested the mutation No. 1645 had been the Naib

Tehsildar (Assistant Collector IInd Class) and in terms of

para 29 of the Standing Order 23-A attestation of

mutations is prohibited by the Assistant Collector IInd

Class concerning a Khana Nisheen daughter unless said

officer is specifically empowered by Financial

Commissioner, Revenue.

(x) The Financial Commissioner (Revenue), Jammu while

confirming the order dated 16.01.2019 opined that though

the order of the Sub Divisional Magistrate, Ramban dated

29.09.1980 is not under challenge, yet the illegality

committed in the matter by attestation of mutation No.

1645 cannot be permitted to continue having been

perpetuated by defeating the purpose of justice and thus

consequently, concurred with the suo moto revisional

power exercised by the Divisional Commissioner, Jammu

qua the order dated 29.09.1980 not being under challenge.

(xi) The Financial Commissioner (Revenue) Jammu, thus,

while summing up the order dated 16.01.2019 accepted

the reference and consequently set aside the mutation No.

1645 attested by the Naib Tehsildar in favour of Mst.

Hajra, the petitioner herein and endorsed the direction of

the Divisional Commissioner, Jammu for remanding the

case to the Tehsildar concerned for attestation of fresh

mutation in accordance with law and the procedure

laid down in the Standing Order 23-

A.

3. The petitioner has questioned both the order of the

Divisional Commissioner, Jammu as also the order of the

Financial Commissioner, Jammu dated 06.12.2017 and

16.01.2019 respectively in the instant petition on

multiple grounds including the one that the Divisional

Commissioner, Jammu as also the Financial

Commissioner, Jammu have had no power to set aside

the order dated 29.09.1980 as the same was not under

challenge and that the same had become final between

the parties and in absence of any challenge to the said

order, the mutation No. 1645 attested in favour of Mst.

Hajra, the petitioner herein on the basis of the Will made

in her favour and also as being a Khana Nisheen

daughter could not have been set aside more so after a

considerable period of time at the instance of Mst. Mursa,

the predecessor-in-interest of the private respondents

herein in the revision petition admittedly hopelessly time

barred.

4. Objections have been filed to the petition by the private

respondents wherein it is being admitted that Mst. Azizi

succeeded her father Rehman Lone and said Mst. Azizi

after her death came to be succeeded by Mst. Hajra, the

petitioner herein as also Mst. Musra, the predecessor-in-

interest of the private respondents herein and the land

under estate left behind by Mst. Azizi, upon her death,

came to be devolved upon Mst. Hajra, the petitioner

herein as also Mst. Musra, the predecessor-in-interest of

the private respondents herein in equal shares and

consequently inheritance mutation no. 1373 came to be

attested.

5. It is being also stated that since mutation No. 1373 dated

30.05.1979 had been attested in presence of both Mst.

Hajra, the petitioner herein and Mst. Musra, the

predecessor-in-interest of the private respondents herein,

the said mutation could not have been challenged by Mst.

Hajra, the petitioner herein on any grounds, be it on the

ground of her being as a Khana Nisheen daughter or else

on the basis of a Will and that for the said reason, Sub

Divisional Magistrate, Ramban could not have entertained

the challenge thrown to mutation No. 1373 by the

petitioner herein and passed order dated 29.09.1980 and

since the said order was passed against facts and law,

Mst. Musra, the predecessor-in-interest of the private

respondents herein rightly challenged the same before the

Divisional Commissioner, Jammu by way of an appeal

which appeal, however, got dismissed in default on

17.12.1982 and no decision on merits was rendered in

the said appeal.

6. It is being further stated that after the dismissal of the

appeal in default, Mst. Hajra, the petitioner herein by

misrepresentation and at the back of Mst. Mursa got

mutation No. 1645 attested in respect of the land under

estate of Mst. Azizi in her favour alone though there was

no direction passed by the Sub Divisional Magistrate,

Ramban in the order dated 29.09.1980 for attestation of

mutation in favour of Mst. Hajra.

7. It is being further stated that after acquiring knowledge of

the attestation of the exparte mutation No. 1645,

Mst. Mursa, the predecessor-in-interest of the private

respondents herein preferred revision petition against the

said mutation before the Divisional Commissioner,

Jammu and therein brought into the notice of the

Divisional Commissioner the fact of earlier challenge

thrown to order dated 29.09.1980 by filing an application,

which application came to be allowed by the Divisional

Commissioner, Jammu.

8. It is being further stated that during the pendency of the

revision petition before the Divisional Commissioner,

Jammu, Mst. Mursa, the predecessor-in-interest of the

private respondents herein died and the private

respondents being her legal heirs came to be substituted

in her place in the revision petition whereafter the

Divisional Commissioner, Jammu passed order dated

06.12.2017 and allowed the revision petition while setting

aside mutation No. 1645 dated 10.05.1985 as also the

order dated 29.09.1980 and remanded the matter to the

Tehsildar concerned for attestation of the fresh mutation

in accordance with law and thereafter upon reference

made by the Divisional Commissioner, Jammu, the

Financial Commissioner (Revenue), Jammu as well

concurred with the said order in terms of the order dated

16.01.2019.

Heard learned counsel for the parties and perused the

record.

9. It is not in dispute between the petitioner and mother of

the private respondents herein succeeded Mst. Azizi, who,

in turn along with Lassu her brother, had succeeded

Rehman Lone, their father.

10. It is also not in dispute that the estate of Rehman Lone

devolved upon Lassu, his son and Mst. Azizi, his daughter

in the ratio of 2:1. It is also not in dispute that Mst. Azizi

had no son but only two daughters, namely, Mst. Hajra,

the petitioner herein and Mst. Mursa, the predecessor-in-

interest of the private respondents herein.

11. It is also an admitted fact that after the death of Mst.

Azizi, Mutation No. 1373 came to be attested in respect of

her estate in favour of Mst. Hajra, the petitioner herein

and Mst. Mursa, the predecessor-in-interest of the

private respondents herein in equal shares, which

mutation No. 1373 had been attested on 30.05.1979 in

presence of Mst. Hajra, the petitioner herein and Mst.

Mursa, the predecessor-in-interest of the private

respondents herein as also in presence of Choudhary

Noor Alam, Member Panchayat, Khawaja Samad Shah,

Member Panchayat, Abdullah S/o Azeem Gujjar, Ahmed

Beigh, Village Chowkidar and Sikender Khan.

A closer examination of the said mutation reveals

that Mst. Hajra, the petitioner herein and Mst. Mursa, the

predecessor-in-interest of the private respondents herein

had made a statement in presence of the above named

persons that their mother Mst. Azizi had died

approximately one and half years before and that said

Mst. Azizi had no male child but only two daughters being

Mst. Hajra, the petitioners herein and Mst. Mursa, the

predecessor-in-interest of the private respondents herein

and that Mst. Hajra is presently residing in the house of

Mst. Azizi and that mutation be attested and the persons

who were present at the time of attestation of said

mutation No. 1373 also endorsed the statement made by

Mst. Hajra, the petitioner herein and Mst. Mursa, the

predecessor-in-interest of the private respondents herein

and consequently it came to be provided that an

inheritance mutation is attested qua the estate of Mst.

Azizi covered under Khewat No. 184 in the name of Mst.

Hajra, the petitioner herein and Mst. Mursa, the

predecessor-in-interest of the private respondents herein

in equal shares.

12. Perusal of the record would further reveal that the

aforesaid mutation No. 1373 dated 30.05.1979 came to

be called in question by Mst. Hajra, the petitioner herein

on 07.09.1979 in an appeal before the Sub Divisional

Magistrate, Ramban on the ground that the mutation had

been attested by an incompetent person i.e., Naib

Tehsildar, Banihal who did not consider the Will

produced by her whereby she had become the owner of

the estate of Mst. Azizi being a Khana Nisheen daughter

of Mst. Azizi, thus, entitling her alone to the property of

Mst. Azizi.

13. Perusal of the record would reveal that the Sub Divisional

Magistrate, Ramban allowed the said appeal in terms of

order dated 29.09.1980 fundamentally on the premise

that Mst. Hajra, the petitioner herein has been residing

with her mother Mst. Azizi and that the said fact had

been endorsed by the other witnesses present at the time

of attestation of mutation No. 1373 and that as such,

Mst. Hajra, the petitioner herein was a Khana Nisheen

daughter of Mst. Azizi making her entitled exclusively to

the property of Mst. Azizi and that Mst. Azizi was

competent to make a Will of the property in favour of her

Khana Nisheen daughter Mst. Hajra, the petitioner

herein. The Sub Divisional Magistrate, Ramban thus,

consequently on the said basis set aside the mutation No.

1373 and ordered correction of the records

14. Further Perusal of the record would reveal that

indisputably Mst. Mursa, the predecessor-in-interest of

the private respondents herein challenged the order of the

Sub Divisional Magistrate, Ramban dated 29.09.1980 in

an appeal before the Divisional Commissioner, Jammu

which appeal, however, got dismissed for non-prosecution

in the year 1982 whereafter subsequent to the dismissal

of the appeal, mutation No. 1645 dated 10.05.1985 came

to be attested by the Naib Tehsildar, Banihal qua the land

under estate of Mst. Azizi in favour of Mst. Hajra, the

petitioner herein alone which mutation admittedly came

to be called in question by Mst. Mursa, the predecessor-

in-interest of the private respondents herein in the

revision petition before the Divisional Commissioner,

Jammu on 12.03.2010 whereupon the Divisional

Commissioner, Jammu passed the impugned order dated

06.12.2017.

15. A deeper and closer examination of the mutation No.

1645 dated 10.05.1985 would manifestly show that Mst.

Mursa, the predecessor-in-interest of the private

respondents herein was not present at the time of

attestation of the said mutation and the said mutation

have had been attested admittedly in her absence.

16. Perusal of the record would also reveal that the Divisional

Commissioner, Jammu while passing the order dated

06.12.2017 has been alive to the fact that mutation No.

1373 initially came to be attested in favour of Mst. Hajra,

the petitioner herein as also Mst. Mursa, the predecessor-

in-interest of the private respondents herein on

27.02.1979 qua the land under estate of Mst. Azizi in

their presence and in equal shares.

It is significant to note here that a bare perusal of

the said mutation No. 1373 reveals that Mst Hajra, the

petitioner herein at the time of its attestation did not

lodge an exclusive claim over the estate of Mst. Azizi, but

instead had made a statement that Mst. Azizi is

succeeded by her and Mst. Mursa, the predecessor-in-

interest of the private respondents herein though having

stated that she after the death of her mother has been

residing in the house of her mother, but even had never

contended that she is a Khana Nisheen daughter.

Though prior to the attestation of the said mutation No.

1373 dated 30.05.1979, during the inheritance

proceedings undertaken on 21.12.1978, it appears from

the record that Mst. Hajra, the petitioner herein had

made a statement before the Naib Tehsildar, Banihal that

Mst. Azizi has died one and half year before and that she

is the only alive daughter of the deceased and that

besides her she has a sister, namely, Mst Mursa who is

married as Khana Beerun daughter (married outside her

material house) and that she the petitioner had also been

married as a Khana Bureen daughter but when her

husband Ali got missing, she re-married one Akbar Butt

and is now residing with her mother in her house. In the

said statement as well, the petitioner Mst. Hajra nowhere

contended that she was married as a Khana Nisheen

daughter of Mst. Azizi.

17. Perusal of the order of the Sub Divisional Magistrate,

Ramban dated 29.09.1980 ironically reveals that the Sub

Divisional Magistrate, Ramban had overlooked the said

inheritance mutation proceedings and surprisingly

referred to and relied upon the statement made by the

petitioner Mst Hajra that she is living in the house of her

deceased mother which fact had been endorsed by the

witnesses who were present at the time of attestation of

mutation and thereupon proceeded to conclude that the

petitioner is a Khana Nisheen daughter on the basis of

said statement and in clear breach of law laid down by a

Full Bench of this Court in case titled as "Mst. Saja Vs.

Ahad Sheikh and others" reported in Jammu &

Kashmir Law Reports Samvat 2007 (April-June 1950)

page 194, wherein it has been ruled and held that it is the

father and father alone who can make his daughter a

khana nisheen daughter and any extension of this custom

by which a mother too can make her daughter khana

nisheen daughter after her father's death would be a

further encroachment on the pure Mohammadan Law by

which succession and inheritance are to be governed.

It is noteworthy that insofar as the institution of

Khana Nisheen daughter is concerned, same has been a

custom prevalent in Kashmir whereby a man who is

desirous of keeping his daughter in his own house even

after her marriage, associates with him in his life time the

husband of such a daughter, who resides with him

becomes a member of his family and under the said

custom, a Khana Nisheen daughter inherits share of a

son.

The Sub Divisional Magistrate, Ramban while

recording such a finding qua the petitioner herein being a

Khana Nisheen has patently committed an illegality and

in the process wrongly and illegally set aside the mutation

No. 1373 which mutation have had been attested in

presence of the petitioner herein as also her sister Mst

Mursa wherein admittedly the petitioner and Mst. Mursa

have had in explicit terms made a statement that they are

the successors in interest of Mst. Azizi who had died one

and half year before and that said Mst. Azizi had no male

child which statements stand endorsed by others present

at that time, thus having resulted into attestation of

mutation No. 1373.

18. The Divisional Commissioner, Jammu has rightly taken

cognizance of the said fact and while deciding the revision

petition of Mst. Mursa, the predecessor-in-interest of the

private respondents herein noticed the illegality

committed by the Sub Divisional Magistrate, Ramban in

the order dated 29.09.1980 as also the fact that the said

mutation No. 1645 dated 10.05.1985 have had been

attested in absence of Mst. Mursa, validly set aside both

order dated 29.09.1980 as also the mutation No. 1645

and rightly remanded the matter back to Tehsildar

Banihal for passing fresh orders.

19. The Financial Commissioner (Revenue) as well upon

receipt of the order of the Divisional Commissioner,

Jammu dated 06.12.2017 under reference not only

appropriately considered the facts of the case, the

observations made by the Divisional Commissioner, but

also the fact that mutation No. 1645 dated 10.05.1985

have had been attested by an incompetent officer in

breach of para 29 of the Standing Order 23-A and, as

such, rightly concluded that notwithstanding no

challenge thrown to the order of the Sub Divisional

Magistrate, Ramban dated 29.09.1980 by Mst Mursa and

taking cognizance of the fact that the said order, in fact,

have had been challenged by Mst. Mursa in an appeal

which appeal got dismissed in default, validly concurred

with the revisional power exercised by the Divisional

Commissioner, Jammu in this regard that the said order

had been passed illegally having perpetuated and

defeated the justice.

20. It is significant to note here that the revisional power as

contained in Section 15 of the Land Revenue Act, Samvat

1996 is exerciseable both by the Divisional Commissioner

as well as the Financial Commissioner both suo moto as

well as upon being invoked by a party subject to a rider

that in the event of order reversing or modifying any

proceeding or order of a subordinate officer affecting any

question of right between private parties, the parties have

to be afforded an opportunity of hearing.

In the instant case, the revisional power has been

exercised suo moto by the Divisional Commissioner and

said suo moto power in law is exerciseable at any point of

time so as to modify/revise any proceeding or order which

is in contravention and inconsistent with the object for

setting the revenue records right so as to prevent any

mischief and miscarriage of justice.

In this view of the matter as well, the contention of

the petitioner that the Divisional Commissioner ought not

to have exercised revisional power and set aside order

dated 29.09.1980 passed by the Sub Divisional

Magistrate, Ramban without having thrown challenge to

by Mst. Mursa, the predecessor in interest of the private

respondents herein, thus, is not tenable and is not potent

enough to dislodge the aforesaid legal position qua the

revisional power available to both the Divisional

Commissioner as well as the Financial Commissioner.

21. Viewed thus, in the aforesaid backdrop, the Divisional

Commissioner, Jammu as also Financial Commissioner

(Revenue), Jammu while passing the impugned orders

dated 06.12.2017 and 16.01.2019 respectively cannot be

said to have faulted and the said orders being concurrent

in nature and character cannot be interfered with by this

Court in exercise of extraordinary writ jurisdiction

enshrined in Article 226 of the Constitution of India.

22. Resultantly, the petition fails and is accordingly

dismissed along with connected applications.

(JAVED IQBAL WANI) JUDGE

JAMMU 07.02.2024 Naresh/Secy.

                        Whether order is speaking      : Yes
                        Whether order is reportable    : Yes