Decided on November 10,2006

Syed Begum Appellant
Zulafkar Ahmed Respondents


- (1.) THIS civil second appeal is directed against the judgment and decree dated 30th of April 1999 passed by District Judge, Rajouri in Appeal No. 31/97 titled Syed Begum vs. Zulafkar Ahmed and another by means of which he has up -held the judgment and decree passed by Sub Judge, Chief Judicial Magistrate, Rajouri in COS No. 86/Civil titled Syed Begum v. Zulafkar Ahmed and another.
(2.) THE brief facts relevant for the disposal of the present appeal are as under: - - "Hussan Mohd, father of appellant -Syed Begum and Sallah Mohd, father of respondent No. 2, Wazir Hussain were real brothers being the sons of one Ghulam Mohd of village Danoor Gursainh District Rajouri. They had 164 and 4 marlas of landed property situated under survey Nos. 74, 75, 76, 77 and 67 at village Danoor Gursainh, and khasra Nos. 127, 90, 91, 85 and 87 situated at village Danoor Jaralanh and survey Nos. 243, 244, 246 and 250 situated at village Rampur Rajouri.
(3.) HUSSAN Mohd had two wives. From the first wife, he got three daughter, namely, Gul Begum, Gundu Begum and Shahida Begum while as from the second wife namely, Mst. Hidayat Bibi, he had two daughters, Syed Begum (appellant) and Iqbal Begum. Hussan Mohd died in the year 1979. The present appellant filed a suit for declaration and joint possession before the Court of District Judge, Rajouri against Zulafkar Ahmed S/o Wazir Hussain and Wazir Hussain S/o Sallah Mohd. The case was transferred to the Court of Sub Judge Rajouri for disposal. The appellants case before the trial court was that she all along resided with her father and was in actual physical possession of his lands and used to cultivate the same on his behalf. She and her husband were thus in possession of the suit land. The appellant further stated that a part of the suit land was grabbed by respondent No. 2, namely, Wazir Hussain after the death of her mother in the year 1983. The appellant further stated that the respondents with the help of Revenue officials managed illegal mutations of inheritance regarding the land left by her father and that all these mutations were challenged by her in the appropriate forums. She further stated that the respondents had forged a deed of Will dated Ist of March 1975 by means of which the whole land left by her father and held by him as owner or an occupancy tenant has been shown to have been bequeathed in favour of defendant No. 1 and his brother Mohd Iqbal. The document, according to the appellant, was forged by Wazir Hussain in the name of father of the appellant and in favour of his sons and thus himself became the actual beneficiary. The appellants further case was that the Will so executed was expressly barred under the provisions of Jammu and Kashmir Agrarian Reforms Act, as then in force. She prayed for a decree for declaration to the effect that the said deed of the Will allegedly made by Hussan Mohd in favour of the respondents was null and void and ineffective on the rights of the plaintiff. She further prayed for joint possession of the suit land by her with respondent No.2. The respondents resisted the suit of the appellant on the ground that the respondents have got the land left by Hussan Mohd under a deed of Will executed by Hussan Mohd in their favour. They further stated that the appellants suit was barred by limitation as she challenged the Will after a lapse of more than 11 years after the death of her father. The respondents further pleaded that there was a custom prevailing in the village as well as in Tehsil of Rajouri from the time immemorial that in case a Mohammedan agriculturist dies, his married daughters do not inherit the property of their father. The respondents denied that the Will executed by Hussan Mohd was in any way hit by the provisions of Jammu and Kashmir Agrarian Reforms Act, 1976, as according to them, there was no legal bar for a Mohammedan to execute a Will of his property.;

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