Kiran Raj

The High Court of Jammu & Kashmir and Ladakh has dismissed a writ petition challenging an order of the Financial Commissioner (Revenue) that had set aside two mutations depriving a legal heir of her rightful share in her father’s estate. The court ruled that the exclusion of a legal heir from succession proceedings violated both Muslim Personal Law and Standing Order 23-A. The court upheld the Financial Commissioner’s directive for fresh attestation of mutation in accordance with law, allowing all concerned parties to present their claims before the competent authority.

The dispute concerns landed property in Jawalapora, Budgam, left behind by the late Shaban Ganie. His legal heirs include the petitioners and respondent No.3, all of whom are siblings. However, the attestation of Mutation No. 804 in 1986 vested ownership solely in the petitioners, excluding respondent No.3 from inheritance. Subsequently, Mutation No. 929 transferred the share of petitioner No.2 to petitioner No.1. Respondent No.3 contested these mutations, claiming she was unlawfully deprived of her rightful share.

In a revision petition before the Financial Commissioner, respondent No.3 argued that she had been wrongly excluded from the mutation process despite being entitled to an equal share of her father’s estate. She contended that the mutations were in violation of succession laws, as she had not relinquished her rights nor was she present during the attestation process. The Financial Commissioner ruled in favor of respondent No.3, holding that the initial mutation was in clear violation of Standing Order 23-A, which governs succession procedures in Jammu & Kashmir. Since Mutation No. 929 was derived from the invalid Mutation No. 804, it was also deemed legally unsustainable.

The petitioners challenged this ruling before the High Court, arguing that respondent No.3 had already received her share in cash and that the Financial Commissioner had erred in entertaining a time-barred revision petition. The petitioners also contended that the order was passed without appreciating the available evidence and that respondent No.3 had no legitimate claim over the property.

The court, however, found that the Financial Commissioner had followed due process. Justice Javed Iqbal Wani observed: “Since record does not reveal as to why respondent 3 herein was excluded to inherit her father and under what circumstances mutation 804 came to be attested in her absence, it can safely be said that the said mutation has been attested in breach and violation of the law of succession under Muslim Personal Law, inasmuch as the provisions of Standing Order 23-A.”

The court observed that there was no clear evidence on record to establish that respondent No.3 had voluntarily relinquished her claim. It further held that the exclusion of a legal heir in matters of succession must be supported by clear legal justification, which was absent in this case.

Regarding the issue of limitation, the court rejected the petitioners’ contention that the revision petition should not have been entertained. The court stated: “In view of the glaring breach and violation of rules and regulations qua the attestation of mutations, the plea of limitation would not be applicable to the case.” The court found that the Financial Commissioner had rightly disregarded the limitation defense, given that the original mutation was fundamentally flawed and violative of established legal principles.

The judgment also stated that the Financial Commissioner’s order was not a final adjudication but rather a remand order directing the concerned revenue officer to attest fresh mutations in accordance with Muslim Personal Law and Standing Order 23-A. The court noted: “The impugned order notwithstanding the setting aside of the impugned mutations is essentially an order of remand, requiring the officer concerned to attest fresh mutations in accordance with Muslim Personal Law, as well as procedure laid down by Standing Order 23-A.”

The court stated that the fresh attestation process would allow the petitioners to present their case before the revenue authorities. Justice Wani observed that the petitioners would have “an ample opportunity to project their case and claim against the case and claim set up by the respondent 3 herein before such attesting officer.”

Considering these findings, the High Court dismissed the petition, affirming the Financial Commissioner’s order dated March 27, 2018.

Case Title: Mohammad Maqbool vs. State of J&K & Ors.
Case Number: OWP 584/2018
Bench: Justice Javed Iqbal Wani

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