Holy Quran bestows right of inheritance first to female then to male survivor: High Court

Srinagar, Dec 18: The High Court of J&K and Ladakh Wednesday held that the Holy Quran bestows the right of inheritance first to the female and then to the male survivor, saying a Muslim daughter “cannot and could not” be expelled by any excuse or pretext to inherit the property of her father.

A bench of Justice Vinod Chatterji Koul said this while dealing with a case of a woman, Mukhti, who being a biological daughter sought share from her father’s property 43 years ago.

She died midway while fighting for her property share from her brother, leaving the legal battle for her five sons and three daughters (petitioners).

The court observed that the revenue officers, oblivious of Muslim Personal Law, passed orders declaring in “essence and core” Mukhti as not being the daughter of the late Muhammad Ganie.

The court observed it as pathetic that the children stepped her (mother) in that race and were also still dreaming of having their mother’s rights matured and plucked albeit having a division bench judgement in her favour.

“The parties hereunto this controversy are Muslims. They are practising in daily and routine life all rituals of Islam strictly while following Quranic injunctions and Hadith, which include ablution for performing daily prayers, celebrations of Eids, performing Hajj, and sacrifice of lamb and camel, paying Zakat, and burying of body in strict accordance with Islam,” the court said.

The court observed that “all these acts and activities are being performed by parties strictly in conformity with Quranic commandments and Sharia.

“But it has been seen when it comes to giving a share to daughter or sister, certain individuals come up with a pretext of custom. Such a practice is even deprecated by Islam,” it said.

“Verse 11 in Surah An-Nisa of the Holy Quran stipulates inheritance laws, specifically distribution of inheritance amongst inheritors,” the court said. “It provides guidelines on how the estate of a deceased person should be divided, taking into account the shares for children, spouse, and other family members.”

The court noted that it had been ordained that the portion of the son would be two times that of the daughter.

It underscored that during the time of ignorance, the people were only giving inheritance to their sons and daughters were being deprived of their portions completely.

“However, in Islam such discrimination has been removed and daughters have been given their right of inheritance,” the court said.

It observed that the son was given two times the amount of the daughter because he is required to spend from his wealth to maintain the household and fulfil the needs of his wife and children and other family members including parents.

“It is from verse 11 of Surah An-Nisa, a duty, obligation, command, ordain, injunction to assign and give the share to the daughter(s). Even its plain reading, in my opinion, bestows right of inheritance first to a female, then to a male survivor,” the court said and ordered that the petitioners in the case - five sons and three daughters and their mother cannot and could not be expelled by any excuse or pretext to inherit the property.

Genesis of the case dates back to 1981 when the mother of the five sons and three daughters petitioned the High Court.

She was admitted to be entitled to share under Muslim Personal Law to the extent of 1/3rd but that suit was dismissed on the ground that no possession was claimed by her.

Against that judgement and decree, an appeal was filed by petitioners after the death of their mother before the division bench of the High Court, which set aside the single bench’s order.

The contention of the petitioners was that they were misled by the “ill advice” of an advocate and they instituted a suit for partition and possession on July 3, 1996, and the same was returned to them after a period of 7 years on December 30, 2003, to be presented before the Revenue authority as the same was barred by Section 139 of the Land Revenue Act.

Thus, the petitioners presented an application under the Land Revenue Act.

Settlement Tehsildar (Collector 1st Class) issued notices to the other side and after hearing parties and considering objections of the other side, attested mutation as per decree was passed by the Division Bench.

Aggrieved of mutation, the brother of the Mukhti, filed an appeal before the Settlement Officer, Kashmir, who set aside the mutation passed in favour of petitioners on “flimsy” grounds vide order dated July 28, 2009, by misinterpreting the division bench judgement.

Against the order of the Settlement Officer, a further appeal was filed before the Settlement Commissioner, J&K, Srinagar, who dismissed the petitioners’ appeal confirming the order of the Settlement Officer.

“Revenue Officers, including Settlement Officer and Settlement Commissioner, have, oblivious of Muslim Personal Law, passed impugned orders. In essence and core, they have declared (woman) as not being the daughter of late Muhammad Ganie,” the court said.

The court underscored that as a matter of fact, Mukhti had 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,” it said.

The court observed that the division bench had held the woman entitled to inherit the share of property under Muslim Personal Law.

The court said that the division bench judgement had long since attained finality and all that had been said and observed therein, in law, was a binding precedent and as a consequence whereof subordinate courts, which includes revenue courts, and in the present case Settlement Commissioner and Settlement Officer were under legal obligation to follow it in letter and spirit.

“However, they have startlingly done contrary thereto,” the court said and set at nought orders that were passed in contravention to the division bench judgement.

In this way, the court allowed the appeal and quashed the order dated December 8, 2010, passed by the Settlement Commissioner, J&K, and Srinagar besides the order of the Settlement Officer dated July 28, 2009.

It observed that 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.

The court directed the Revenue Department to implement the judgement of the division bench dated February 9, 1996, in letter and spirit, by giving petitioners the share of their mother in the property of her father to the extent of 69 kanal, 2 marlas situated on the outskirts of Srinagar as per the Muslim Personal Law within three months.

However, the court made it clear that in the event, the brother of the woman had created any third-party interest in the property, then in such a situation, it would be responsibility of the brother to give landed property at some other place having equivalent market value or according to the market value of the property in question.