JKLR-Part(I)                                                  CREV 22/1999                                      Back To Index

(2001) 1 J & K LAW REPORTER 83
High Court of Jammu and Kashmir
at Srinagar
Before
Hon’ble Mr. Justice N.A. Kakru, Judge

HABIB CHANGA & ORS.                                                                                                    Petitioners
                                                                              versus
Mst. FAZI                                                                                                                               Respondent

C.REV. No. 22 / 1999, decided on 20.10.2000.

J&K Code of Civil Procedure, Svt. 1977 ( 1920 AD ), O. XXII Rule 3 - Abatement of suit - Defendent / respondent filed application for dismissal of suit on the plea of abatement - The Court taking cognizance of the application framed issues - Plaintiff petitioner filed revision petition - Revision petition allowed and application seeking abatement of suit dismissed - Court below directed to proceed with the case in accordance with law.

Advocates who appeared in this case :
Mr. A.K. Malik, Advocate for the petitioner
Mr. M.A. Qayoom, Advocate for the respondent

Case referred :
Mumtaz Begum v. S.A. Ullah Khan AIR 1973 JK-2B

JUDGMENT AND ORDER

In a suit for partition pending since 1974 in the court of learned Sub-Judge Sopore one of the plaintiffs namely Ramzan Changa died during pendency of the suit (deceased hereinafter). More than two and a half decades have elapsed yet it is to reach its logical end. The intervening events which have caused delay in disposal of the suit being irrelevant for disposal of this revision petition can be conveniently skipped over. The short controversy owes its origin to an application of the defendants-respondents seeking dismissal of the suit on the plea of abatement alleged to have emanated from omission ofthe plaintiffs petitioners to implead one Khaliq Seeru alleged Parvardah (adopted son) of the deceased. The court taking cognizance of the application framed the following issues :

"(A) Whether Khaliq Seeru is the adopted son of deceased Ramzan Changa? OPD.

(B) In case issue No. A is decided in affirmative, whether the plaintiff’s suit will abate for not bringing the adopted son on record on the death of Ramzan Changa? OPD."

The jurisdiction so exercised by the court below having aggrieved the palintiffs-petitioners, they have elected to invoke the revisional jurisdiction of this court by medium of this civil revision petition. The order is assailed on the ground that since deceased is not survived by any issue or widow, the estate left behind by him has devolved on the plaintiffs-petitioners being his real brothers. It is also contended that the defendant - respondents have no locus standi to plead adoption on behalf of an alleged adoptee who has not chosen to advance such claim that too when custom is neither pleaded nor established. On the contrary the learned counsel for the defendents-respondents contended that there being documentary evidence suggesting adoption of Khaliq Seeru the jurisdiction to frame the issues has been validly exercised by the learned Sub-Judge. To appreciate the controversy Rule 3 of Order XXII Civil Procedure Code needs to be noticed which is reproduced :

"3. Procedure in case of one of several plaintiffs or of sole plaintiff:-

1) Where one of two or more plaintiffs dies and the right tosue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, theCourt, on an application made in that behalf, shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit.

2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."

3. A plain reading of the Rule requires a surviving plaintiff to cause the legal representative of the deceased plaintiff to be made a party to the suit and failure to adhere to the mandate of the said Rule renders the suit liable to abate so far as plaintiff - deceased is concerned. Whether Khaliq Seeru is a legal representative of the deceased needs to be considered in the light of the legislative enactment namely the Sri Pratap Jammu and Kashmir Law Consolidation Act, 1977 and the relevant provision being 4(1)(d) is extractedfor facility of reference :

"4. Law in force - (1) The Laws administered and to be administered by the Civil and Criminal Courts of the State of Jammu and Kashmir are and shall, be as follows :

a) ...

b) ...

c) ...

d) in question regarding succession, inheritance, special property of females, betrothals, marriage, divorce, dower, adoption, guardianship, minority bastardy, family relations, wills, legacies, gifts, wagi, partitions, castes or any religious usage or institution, the rules of decision is and shall be ... the Mohammedan Law in cases where the parties are Mohammedans and the Hindu Law in cases where the parties are Hindus, except in 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 notcontrary to justice, equity and good conscience and had not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority;"

This provision of law makes it manifest that in respect of inheritance the Muslims are governed by Muslim Law which can be said good-bye provided custom provides to the contrary but a mere averment of custom cannot amount to modification of the ordinary laws of inheritance unless the party pleads and proves a valid custom. The basic requirements on which the plea of custom can be founded have been enunciated in Mumtaz Begum v. S. A. Ullah Khan, AIR1973 JK-2B and the relevant portions are reproduced hereunder :

"8 ... It is well settled that a custom must be ancient, invariable, certain and continuous. Another important aspect that has to be taken in mind is that while instances of custom may be of some evidentiary value yet it must be established that the practice which developed into a customary usage in derogation of the personal law of the parties, must be proved to have been exercised not merely by virtue of an agreement between the parties but as of right. The evidence must show that a claim was made by any of the heirs but such was the force of usage and the custom that the claim was denied and the custom prevailed."

"10. Thus a careful analysis of the authorities mentioned above would clearly reveal that the following conditions must be proved by the party setting up a custom in derogation of personal law :

i) That the custom must be ancient, if not immemorial and proved to have been established and acted upon for a pretty long time.

ii) That the custom must be invariable, certain and continuous.

iii) That having regard to the Indian conditions as mentioned above by Hutchins J. in (1885) ILR 8 Mad 464 (supra) the evidence must show that the custom was exercised as of right and not merely by concession or agreement ... "

5. The judgement supra requires a party which banks upon a custom not only to plead it but establish too by cogent and independent evidence which is not true of the case in hand and fact of the matter is that no claim whatsoever has been advanced by Khaliq Seeru even as on todate and unless adoption is pleaded and established by Khaliq Seeru, the rule of inheritance incorporated and recognized by an Act of the legislature in terms of section 4 (1)(d) of 1977 Act shall have to prevail. Resultantly at the moment of death of Ramzan Changa his estate has immediately passed on by survivership to his heirs recognised by Mohammedian Law in proportion to the shares ordained thereto.

6. Thus what emerges in the light of the facts of the case backed up by the mandate of law is that in the matters of inheritance it is the personal law of the parties which determines the mode of succession and inheritance unless custom is pleaded and established. Significantly none of the parties to the lis have pleaded custom in their pleadings. Moreso admittedly Khaliq Seeru does not fall within the ambit of legal heirs prescribed under Mohammedan Law therefore he cannot claim to be a legal representative of the deceased, obviously embarking upon the question of adoption amounts to material irregularity which is likely to cause failure of justice.

7. The learned counsel for the petitioners has also contended that the suit for partition does not abate by death of the plaintiff. This argument is seriously controverted by the other side but in view of the conclusion arrived at hereinabove, the contention has paled into insignificance and no observation is called for.

8. In the result, the revision petition succeeds and is allowed. The order impugned is set aside and application seeking abatement of the suit is dismissed. The suit shall proceed ahead in accordance with the law. However, any observation made hereinabove shall not be taken into account by the trial court if an occasion to consider the impleadment of Khaliq Seeru arises at any stage during the pendency of the suit.

9. No order as to costs.