Straight, J.:— This is an appeal, under s. 10 of the Letters Patent, from a judgment of my brother Brodhurst, dated the 22nd March, 1886, affirming, in difference with the opinion of Petheram, C.J, a decree of the Subordinate Judge of Meerut of the 3rd of March, 1885. The suit to which the appeal relates was instituted by the plaintiff-appellant before us on the 13th of May, [301] 1884, in the Court of the Subordinate Judge of Meerut, for a declaration of his right to and possession of his share of the property left by his deceased father, Ghulam Ghaus Khan, who died on the 6th of November, 1879. The defendants cited by him were, Muhammad Ismail Khan, son, and Musammats Fidayat-un-nissa Karamat un-nissa, and Barkat-un-nissa, daughters of the said Ghulam Ghaus Khan, and four other persons, lessees or mortgagees in possession of portions of the property leased or mortgaged to them by the other defendants. The real contesting defendant was Muhammad Ismail Khan, and the single and substantial position taken up by him with which we are concerned is that the plaintiff was not a son of Ghulam Ghaus Khan, but that he was born of the body of one Musammat Moti Begam before her marriage with Ghulam Ghaus Khan. The Subordinate Judge found that “the weight of evidence on the record then proves that Allahdad is not really a son of Ghulam Ghaus Khan, and that he never really acknowldedged him as such,” and he accordingly dismissed the suit. The plaintiff then appealed to this Court, and the case came before a Division Bench consisting of Petheram, C.J, and Brodhurst, J. The former was of opinion that the evidence established that “Allahdad Khan was the illegatimate son of Ghulam Ghaus Khan; that he was born before the marriage of Ghulam Ghaus Khan and Moti Begam; that it is proved by evidence, the truth of which is beyond doubt, that upon several occasions in 1861 and 1862 Ghulam Ghaus Khan did at that time acknowledge the plaintiff, Allahdad Khan, to be his son in fact, and that the case resolves itself into a pure question of law, namely, what, according to the Muhammadan law, is the effect of an acknowledgment by a Muhammadan that a particular person born of the acknowledger's wife before marriage is his son? How does such an acknowledgment affect the status of the person in reference to whom it is made?” Petheram, C.J, then proceeded to discuss three rulings of their Lordships of the Privy Council reported in 11 Moore's Indian Appeals, p. 94 : L.R 9 I.A, p. 8, and L.R 11 I.A, page 31, which in the result he took to be authorities for the proposition that “an acknowledgment of children by a Muhammadan as his sons gives them the status of legitimacy.”. Upon this view of the matter he would have reversed the decision of the Subordinate Judge and decreed [302] the plaintiff's claim. Brodhurst, J., found—“From the evidence and the whole circumstances of the case it is, I think, palpable that Allahdad was not the son of Ghulam Ghaus Khan; that he was not legitimated by Ghulam Ghaus, and that he well knew that he was at the highest nothing more than Ghulam Ghaus Khan's stepson, had never been called his son except by courtesy, and had no right to any share in his (Ghulam Ghaus's) property.” He also referred to the case in L.R 11 I.A, p. 31, and observed: “I see nothing to lead me to believe that Ghulam Ghaus ever regarded Allahdad in any other light than chat of a stepson: and applying the principle contained in the above remarks of their Lordships of the Privy Council to the present case, I find that there is no sufficient evidence of the acknowledgment by Ghulam Ghaus Khan of Allahdad Khan as his son from which an inference is fairly to be deduced that Ghulam Ghaus ever intended to recognise him, and give him the status of a son capable of inheriting, and I would therefore dismiss the appeal with costs.” It is from this judgment of Brodhurst, J., that the appeal now before us has been preferred. The case was very ably argued at the hearing on both sides, and the delay in pronouncing judgment has occurred owing to the necessity that arose for consulting the original texts of the Muhammadan law and considering them in conjunction with the several rulings of their Lordships of the Privy Council to which Petheram, C.J, referred. The contentions for the appellant were—1st, that the evidence established Allahdad Khan, the plaintiff, to be the legitimate son of Ghulam Ghaus Khan; 2nd, that the acknowledgments proved to have been made by Ghulam Ghaus Khan of Allahdad Khan as his son were sufficient to confer on Allahdad Khan the status of a legitimate son. Upon the first of these two matters it is to be observed that while Petheram, C.J, on the one hand, was of opinion that the facts showed the plaintiff to be the illegitimate son of Ghulam Ghaus Khan, Brodhurst, J., on the other, considered that all they proved was that he was “the son of Moti Begam by an unknown father.” To clear the way to a consideration of the second ground put forward for the plaintiff, which, in my judgment, raises the real and only question to be determined, I may at once conveniently state that, in my opinion, the finding of Petheram, C.J, that the plaintiff has [303] proved himself to be the illegitimate son of Ghulam Ghaus Khan, cannot be sustained. For the purposes of this judgment it seems enough to say that the evidence does not establish to my satisfaction that he was born of the loins of Ghulam Ghaus Khan; that the facts go to show that Moti Begam was his mother, but that they do not suggest or prove any particular person to be his father. What the date of Moti Begam's admitted marriage with Ghulam Ghaus Khan is, it seems to me, unproved. The depositions of Muhammad Baz Khan and Sipahdar Khan, witnesses for the plaintiff, the former of whom of his connection by marriage, are, to my mind, of such a character as to make it unsafe to rely upon them; while the same remark applies to the statements of Faizullah Khan, Ilahi Bakhsh Khan and Sirdar Khan called for the defendant, about whom the Subordinate Judge remarks. “Their demeanour produced in my mind the impression that they were strong partisans who were prepared to swear anything and everything that they found would be favourable to the case for the defence.” The fact remains, and an important central fact it is, that at some time or another before the birth of the defendant Ismail Khan, Ghulam Ghaus Khan and Moti Begam had become man and wife; and this is common ground between the parties. Whether their marriage took place before or after the plaintiff's birth is, in my opinion, not established. The first contention for the plaintiff, therefore, must be decided adversely to him. Then arises the crucial and difficult point raised in the second contention on his behalf, namely, that the acknowledgments proved to have been made by Ghulam Ghaus Khan of the plaintiff as his son are sufficient to confer on him the status of a legitimate son, with the legal consequence of a right to inherit. This point involves two questions—1st, what, in fact, were the acknowledgments? 2nd, what is the legal effect, under the Muhammadan law, of such acknowledgments?
With regard to the first of these two matters, it is satisfactory to feel that the materials for determining it are mainly to be found in the shape of documents which, if their authenticity be established, speak for themselves without fear of falsehood. I have said nothing as yet and shall have little to say about the evidence of the plaintiff and the defendant Ismail Khan, because it is obvious to my mind that both of them have made many statements that are [304] untrue—notably in the case of the plaintiff as to his ignorance of the litigation between Ismail Khan and his sisters and Musammat Nanhi and her children, upon which point the answers to interrogatories of Sheikh Wahid-ud-din, which, I believe, contradict him; and in the case of the defendant as to his denials of the several letters, undoubtedly written by him to the plaintiff, in which he addressed him as “brother” and spoke of Ghulam Ghaus Khan as “the father.” Without particularising further it does not seem to me that any useful purpose would be served by my travelling in detail through the evidence of either of these persons, each of whom called the other as his witness. They are obviously bitterly hostile to one another, and it is clear that neither was over-scrupulous in what he swore to. So far as their testimony is concerned, I think that the one may be fairly set off against the other, as neither can be safely trusted. Before concluding my judgment, I shall later on have something to say with regard to the conduct of the plaintiff, upon which so much stress is laid by my brother Brodhurst and the Subordinate Judge, the materiality of which I need not discuss now.
I turn, then, to the documentary evidence for the plaintiff directly showing statements made by Ghulam Ghaus Khan that the plaintiff was his son and indicating treatment of him as such, which is as follows:— [His Lordship proceeded Co. discuss the evidence in detail, and continued.]
To sum up the matter briefly, therefore, the case for the plaintiff consists of the direct acknowledgments and treatment of him as a son by Ghulam Ghaus Khan, as shown by the documents Nos. 35A, 36, 37, 38, 39 and 40; his reputation and recognition as a son of Ghulam Ghaus Khan, as disclosed by the documents Nos. 43, 44, 45, and 46, and the various letters written by the defendant to him upon which I have already commented. It seems to me, therefore, that the matter stands thus:— The plaintiff is admittedly the son of Moti Begam, whose marriage to, or carnal intercourse with, any other man than Ghulam Ghaus Khan, is not attempted to be proved, and who, at the time of her death in 1859, was admittedly the wife of Ghulam Ghaus Khan. How her connection with him originated, or what the date of her marriage to [305] him was, there is no satisfactory evidence to show; but that she lived in his house for a long period of time, cohabiting with him and bearing him several children whose legitimacy his not disputed, is beyond question. The defendant in effect asks us to draw a sharp dividing line between the date of the birth of the plaintiff and of his own, and to find as a fact that no marriage was subsisting when the plaintiff was born, but that it had taken place when he was born. My answer to this proposition must be and is, that there is no evidence upon which I can safely rely to justify me in coming to any such finding, and if the defendant had to maintain the converse position to that now asserted by him, he would be in similar straits as the plaintiff to prove a marriage between Ghulam Ghaus Khan and his mother. That there was no legal obstacle to a marriage must be conceded, and though its date remains unestablished, I need for the purposes of my judgment say no more than this, that it may as well have taken place before as after the birth of the plaintiff.
Such being the material facts as to acknowledgment and treatment of the plaintiff by Ghulam Ghaus Khan, the next point to be determined is, what is the legal effect of such acknowledgments and treatment according to the Muhammadan law? If the rules of that law deal with such matters as questions of evidence, i.e, as mere adjective law, and simply lay down principles for guidance in forming presumptions or drawing inferences, then they would not come within the term “Muhammadan law” as used in s. 24 of the Bengal Civil Courts Act, i.e, the substantive Muhammadan law regarding succession, inheritance, &c, and I should have to deal with the case according to the rules of evidence contained in the Evidence Act. Petheram, C.J, in his judgment has treated the decisions of their Lordships of the Privy Council to which he refers as enunciating rules of substantive law “as laid down in the book,” but he adds, “the law so laid down is not, in my opinion, in accordance with the custom of the people of this country.” With the most profound respect for so eminent an authority, I think this remark is somewhat misleading and calculated to create doubts and impressions that a close scrutiny of the matter does not warrant. There are many apparent anomalies [306] in both the Hindu and Muhammadan law that strike the mind of an English lawyer with astonishment, if not dismay, as irreconcilable with the principles of the English statute and common law that he has been taught; and in India it is Datural enough that among our High Court advocates and pleaders, who represent the progress of English thought and influence upon the more or less undigested mass of doctrines and principles to be found in the Mitakshara or the various sources whence the Muhammadan law is drawn, the discussion of questions such as we have here should be maintained on modern lines and according to what may fairly be called popular views. But so long as the rules of the Hindu and Muhammadan law stand with such expositions and rulings as have been made in regard to them by their Lordships of the Privy Council, so long are we, sitting as Judges in this country, constrained by statute to find out what those rules are, and when we have ascertained them with precision to give effect to them. I have done my best to ascertain whether the ruling of their Lordships are in any way at variance with the practices recognised by the Muhammadan community, and I cannot discover that any custom has grown up or exists which overrides or alters those principles of Muhammadan substantive law which I shall presently state in detail. Let us, however, first look to what their Lordships of the Privy Council have said in Lalli Begam's case to which Petheram, C.J, among others refers: “Their Lordships, however, are relieved from a discussion of those authorities, inasmuch as the rule of the Muhammadan law has not been disputed at the Bar, viz., that the acknowledgment and recognition of children by a Muhammadan as his sons gives them the status of sons capable of inheriting as legitimate sons, unless certain conditions exist, which do not occur in this case. That rule of the Muhammadan law has not been questioned at the Bar.” The original case from which the appeal was preferred is to be found reported in the Punjab Record for 1875, at page 21 of the Civil Rulings, and from this it appears that Mr. Boulnois, a Judge of the Chief Court, held in effect that “the acknowledgment of a son renders that person the legitimate son of the acknowledger under Muhammadan law, although the person acknowledged was born out of wedlock.” This view may [307] possibly seem to be in accordance with the often-quoted passage to be found in their Lordships' judgment in the case of Ashruf-ood-Dowlah Ahmad Hossein Khan v. Hyder Hossein Khan commencing—“But the presumption of legitimacy from marriage follows the bed, &c.” Nevertheless, with the greatest deference, it seems to me that Mr. Boulnois' proposition goes too far, and that it is not in harmony with the texts. I see nothing in their Lordships' judgment in Lalli Begam's case to lead me to conclude that they accepted the rule of Muhammadan law in the terms stated by Mr. Boulnois; indeed, they themselves formulated it in the manner already recited by me. This case of Lalli Begam is instructive not only from what their Lordships said as to this rule of the Mudammadan law, but from its result in that, while the question as to whether Lalli Begam was married to the Nawab before the birth of the plaintiffs was left undetermined, it was nevertheless held that they had by acknowledgment and recognition by
him as his sons acquired the status of sons and a title to inherit. Their Lordships remark: “However, there is really no dispute about the law, and their Lordships in this case have not to lay down any new principles of law, but only to apply a well-established principle to the facts.” That principle was embodied in the second question stated by them as arising for decision, viz., whether, no marriage between Lalli Begam and the Nawab being established, there is proof of an acknowledgment and recognition by the Nawab of the two plaintiffs as his sons which would give them the status of sons and a title to inherit.”
Now I do not hesitate to say, having very carefully considered the language of their Lordships' judgment, that they unhesitatingly adopted the view that the rules of Muhammadan law relating to acknowledgment by a Muhammadan of another as his son or daughter, as the case may be, are rules of substantive law, and such acknowledgment, if there is no legal impediment to it, confers a status of legitimacy just as, by the analogy of the Roman law, manumission of a slave conferred on him the status of a free man. Without further preface I proceed to state what the more important authorities are, which, having given them my most careful [308] consideration, I take as establishing two propositions: 1st, that proved acknowledgments by a Muhammadan of another person as his son or daughter, if none of the conditions in bar subsist, which will presently appear, confer on such person the status of a legitimate child with its legal consequences; 2nd, that such an acknowledgment once made cannot be recalled either by the acknowledger himself or anyone claiming under him. I may remark that the following quotations are, as the names of the authors will show, from the highest sources known to the. Muhammadan law:—
Birjandi
“(i) The book on acknowledgment has been placed next to that of evidence, because an acknowledgment is a kind of information and as such like evidence. The reason why these two subjects precede the subjects of claims is that the ascertainment of evidence and acknowledgment occur in most cases before the claim. As a matter of language the word ikrar is derived either from karar which means rest and confirmation, as if the acknowledger establishes by his acknowledgment a right against himself, or the word is derived from kurrat-ul-ain that is, comfort of the eyes, because the person in whose favour an acknowledgment is made receives thereby comfort to his eyes, and thus the acknowledger comforts the eyes of the person in whose favour the acknowledgment is made.
An acknowledgment is giving information as to the right of a person enforcible against the acknowledger; that is, the person who gives such information. Some difficulty has arisen (in consequence of this definition) in the case of acknowledgment by an agent appointed to conduct litigation and also in the case of an executor, inasmuch as in these cases the acknowledgment of these persons amounts to giving information as to
the right of another [309] person against the principal in the one case and the ward in the other.
“The requirement of acknowledgment is that it should be indicative of that in respect of which the acknowledgment is made, not a mere allusion thereto. This means that it is indispensable that the acknowledgment should expressly state the subject of the acknowledgment as if it already exists, and that by the acknowledgment the proof thereof is expressed. It is not an effect of an acknowledgment that anything is for the first time founded or established, and it is on this account that when the person in whose favour the acknowledgment is made comes to know that the acknowledger was false in his acknowledgment, the subject of the acknowledgment is not lawful to such a person (as a matter between him and his Creator, the Almighty), since he would in such a case be taking the subject of acknowledgment without the real willingness of the acknowledger. But if the acknowledger has delivered the subject of acknowledgment willingly, then it is lawful and becomes like an investiture of ownership by the acknowledger, and as such on the footing of a gift. This is so because ownership is established in favour of him for whom the acknowlegment is made, and this without any verification or acceptance on his part; but such ownership is nullified by his rejecting it, so that if he first verifies it and then rejects it, such rejection is not valid. So in the Kafi.
(ii) If a person acknowledges the sonship of a boy whose descent is unknown, and he is such that one like him can be born of one [310] like the acknowledger, and the boy verifies the acknowledgment, his descent is established. This has accidentally been mentioned with reference to the sonship of a boy, because, even if the acknowledgment of a daughter-hood is made in respect of a woman, the same rule applies. But it is essential that such sonship (or daughter-hood) should be without an intermediary link: so much so that if an acknowledgment is made that the boy is the son's son of the acknowledger, the descent is not established, and this result is similar to that of acknowledging another to be a brother.
“It is a condition precedent (to the validity of acknowledgment of parentage) that the descent of the acknowledged be unknown, because, if his descent is known, his sonship other than his parent would be impossible. What is meant by a descent not being known is that it should be unknown in the town in which he resides, and this explanation is contained in the Kifaya that the trustworthy reference is to the place of birth. It is stated in the Kenaya that when a person regarding one whose descent is known says,” “This is my son, and when I die all my estate is his,” then according to some of the jurists the acknowledged will be entitled to one-third: of the estate by way of legacy, whilst according to other jurists he would not be entitled even to one-third; and this last doctrine seems to be most consistent with right principles.
“The limitation that the acknowledged might have been born of the acknowledger means that the age of the acknowledger should exceed the age of the acknowledged at least by twelve years, and this because it is the minimum period of puberty for a youth: [311] and this limitation is necessary, because, if the acknowledger had not attained puberty, the acknowledgment would be falsified obviously. It is also a condition that the acknowledged boy should verify the acknowledgment, because, if he does not verify, an impediment is created and his descent is not established by the mere acknowledgment, but requires proof. This, however, applies only to cases in which the boy acknowledged is capable of expressing himself; when he is too young to express himself, verification by him is not a condition. It is stated in the chapter on the manumission of slaves in the Fatawa Kazi Khan that some jurists have held that sonship is not established unless it is verified by the person in whose favour it is made. But the correct doctrine is that such a condition is not essential as above stated, and this is in conformity with the doctrine of the Hedaya and many other books.”
“In the case of a man in sickness acknowledging a youth of unknown parentage it is a condition that such a youth might have been
begotten by such an acknowledger, because, if the acknowledged is older in age the obvious fact falsifies the acknowledgment. Indeed, Malik has gone the length of holding that even if notoriety contradicts the acknowledger, such as by indicating that he was an Indian whilst the acknowledged boy was a Persian, the latter's descent is not established. The restriction that the acknowledged youth should verify the acknowledger has been imposed because the rule as to a youth who can express himself is applicable owing [312] to his being in his own competency, whilst, on the contrary, an infant is in the power of another, and as such descends to the footing of animals, and no importance is attached to his verification. But according to the three Masters [i.e. Imam Abu Hanifa, Imam Muhammad and Kazi Abu Yusuf) the descent is established without any such verification if the acknowledged be below the age of discretion. The descent is established because it is one of the necessities of nature, and there can be no objection thereto, even though the acknowledger be in sickness at the time of the acknowledgment. The acknowledged youth will participate with the heirs in the inheritance, because such is one of the consequences of the proof of descent. The acknowledgment by such in respect of a child or parents or wife or a manumitted slave will hold good, because, since it does not involve attribution of descent to any one else, the acknowledgment must be accepted.”
Dukrul Mukhtar.
“(i) If a person makes an acknowledgment in favour of a stranger whose parentage is unknown and thereafter acknowledges him to be his son, and the latter verifies it whilst he is one of those who are fit to make such a verification, his descent is established with reference to the time of his being begotten.
[313] “(ii) If a person makes an acknowledgment in favour of a youth whose parentage is unknown either at his birth-place or in the town where he is, that the latter is his son, and the acknowedger and the acknowledged are such in age that the latter may be born of the former as a son, and
the youth verifies it, he being capable of discretion (because otherwise his verification is not necessary as already stated), then his descent is established, though the acknowledger be in sickness; and when the descent is so established, the youth will participate with the other heirs.”
Ashbah.
“When the person in whose favour an acknowledgment is made falsified the acknowledger the acknowledgment is nullified, except in the case of acknowledgment as to the freedom of slaves, as to the parentage, and as to the right arising out of manumission of slaves: so the rule had been laid down in the Saran-ul-Majma on the ground that such acknowledgments are not susceptible of annulment.”
Alamgiri, Vol. I.
“(i) When a man acknowledges a son expressly or impliedly, the negation thereof will not be valid thereafter whether such acknowledgment is made at the time of the birth or afterwards. Express acknowledgment is when a man says ‘The child is mine,’ or says ‘This is my child;’ and implied acknowledgment is that the man should remain silent when he is being congratulated upon [314] the birth of the child in which case he may be required to take an oath. So in the Ghayatul-bayun.
“(ii) If the husband is without penis and she is not aware of his condition and gives birth to a child and he claims him, then the Kazi is to hold his descent to be established; and if she thereafter comes to be aware of his condition and therefore claims separation, she is entitled to do so, because the child necessarily becomes his even without proof of sexual intercourses.
Page 27, Baillie, and Note.
(iii) A man says in favour of a boy ‘There is my son’ and then he dies; thereafter the mother of the boy, she being a free woman, comes forth and says ‘I am the wife of deceased.’ Thereby she is the wife of the deceased, and both she and the boy inherit from him.
“(iv) If a man has illicit intercourse with a woman, who then becomes pregnant, and afterwards marries her and she then gives birth to a child, if such child is born after expiration of six months or more, his descent is established. But if she gives birth within less than six months his descent is not established, unless he claims him and does not say that the child is the result of illicit intercourse. But if he says that the child is born of me by illicit [315] intercourse, the descent is not established and he will not inherit from him. So in the Yanasi.”
Fatwa Kazi Khan.
“(i) A man has married a woman by a defective marriage and thereafter he retires with her, and thereafter she gives birth to a child after expiration of six months: his descent is established from him. There is difference of opinion as to the exact fixation of this time, because the question is whether these six months are to be calculated from the date of the marriage or from the time of retirement. Abu Hanifa and Abu Yusuf (on whom be peace!) regard this from date of the marriage; but Muhammad regards the six months from the time of retirement, and this is the accepted doctrine. In the case of a valid marriage all the three Masters are agreed that the period is to be regarded from the time of the marriage. Some of the jurists have said that in the case of the valid marriage retirement is not a condition precedent, but that there must be a state of things when they might have had intercourse.
“A man has had illicit intercourse with a woman and she is impregnated by him, and during her pregnancy he marries her and has not had sexual intercourse with her till she gives birth to a child; then they (i.e, the three) have held that the marriage is valid, if she was not during her iddat in consequence of some one else and penitence is necessary for him; and the jurist Abulhai [316] holds that if she gives birth to the child after the expiration of six months or more from the time of the marriage, the marriage is lawful and the descent is established. But if she gives birth to the child in less than six months from the date of the marriage, the marriage is not established and the child will not inherit from him unless the man says ‘This is a son from me’ and does not say ‘This is the offspring of illegitimate intercourse’.
(ii) A man has married a woman and she gives birth to a child in less than six months. Muhammad maintains that the marriage is defective ‘according to my views and those of Abu Yusuf’.
A Majbub has married a woman who lived with him for a time and then gave birth to a child. Abu Yusuf in such a case holds that the son is his son and she is lawful to him.
(iii) A man has married a woman and had then divorced her at the time before intercourse, and she gives birth to a child at the end of six months from the time of the marriage. The child is his child, though Zufar holds a contrary view.”
[317] From these passages it appears to me that the proposition stated by their Lordships of the Privy Council in Lalli Begam's case, as not being questioned before them, but which has been questioned before us in this appeal, namely, that the acknowledgment of children by a Muhammadan as his sons gives them status of sons capable of inheriting as legitimate sons, unless certain conditions exist, is established to be a distinct and
specific rule of the substantive Muhammdan law relating to inheritance to which we are bound to give effect. Birth during wedlock, that is to say, legitimate birth, necessarily confers a right to inherit; illegitimate birth, that is, without wedlock, subsisting between the father and mother at the date of the child's begetting, confers no such right. But where there is no proof of legitimate birth or illegitimate birth and the paternity of a child is unknown in the sense that no specific person is shown to have been his father, then his acknowledgment by another, who claims him as his son, according to the authorities I have quoted from, affords a conclusive presumption that the child acknowledged is the legitimate child of the acknowledger and places him in that category. In the present case we have the fact that Moti Begam, the undoubted mother of the plaintiff, admittedly at some time or other—when it was we have no reliable proof—became the wife of Ghulam Ghaus Khan, that the plaintiff was acknowledged as a son by Ghulam Ghaus Khan and treated by him as such, and the plaintiff accepted and described himself as holding that position. It seems to me, therefore, that the requirements of the rule of the Muhammadan law have been satisfied, and that the plaintiff has established his acknowledgment and recognition by Ghulam Ghaus Khan as a son which gave him the status of a son and a title to inherit. This being so, it remains to be seen whether such a status once conferred can be destroyed by any subsequent act of the acknowledger or those who claim through him. It is equally clear that it cannot, and in support of this view there are not only the authorities of the Muhammadan law which I have quoted, but a decision of their Lordships of the Privy Council reported in 11 Moore's Indian Appeals, p. 94, in which it was held “that the denial of a son after an established acknowledgment, though supported by a deed of repudiation and disclaimer by the father, is [318] untenable.” As it seems to us that there were distinct acknowledgments by Ghulam Ghaus Khan of the plaintiff in 1861, it becomes immaterial to consider whether Ghulam Ghaus Khan did or did not personally cause, or bring about, the entry which was made in the wajib-ul-arz of September 12th, 1870, upon which so much stress was laid by the learned counsel for the defendant in the course of his argument: though, if it were necessary to do so, I should have said without hesitation that there is no evidence to show that it was the result of any act or declaration of his. From the same point of view it is unnecessary to discuss the conduct of the plaintiff in regard to the suit brought by the defendant in 1880 and his delay in coming into Court with his present claim. None of these matters could alter or destroy his status as a son if once conferred by acknowledgment, and it would serve no useful purpose, and only lead me into greater length in a judgment already sufficiently prolix were I to explain my views in detail with regard to them.
For the reasons I have given I have come to the conclusion that this appeal must be decreed and the status of the appellant as the legitimate son of Ghulam Ghaus Khan, with the consequent right of inheriting a share in the deceased father's estate, be declared.
Then arises the question as to the precise form our order should take, and I much regret that upon this point I am at difference with the learned Chief Justice and my brother Mahmood, I feel sure that I must be wrong in my own View, and I have endeavoured to convince myself that I am, but I am unable to do so.
In determining what our order should be, it is necessary to examine the terms of ss. 562, 563 and 564 of the Civil Procedure Code; for if I understand the matter aright, those sections read together and in contrast to the provisions of ss. 565, 566, distinctly direct a Court of appeal not to remand a case, unless it has been determined and disposed of by the Court of first instance “upon a preliminary point so as to exclude any evidence of fact which appears to the appellate Court essential for the determination of the rights of the parties, and the decision upon such preliminary points is reversed in appeal.”
[319] The question here, then, is whether the Sub Judge can be said to have disposed of this suit upon a preliminary point, to the exclusion of evidence of fact. In determining that question it is important to see, apart from the mere question of the status of the plaintiff, which, with the rest of the Court, I am willing to treat as a preliminary point, and which the Sub Judge has determined, what were the other issues raised? It will not be disputed that the first four issues settled by the Sub Judge for trial, including that of status, have been disposed of by him. The fifth issue which he settled was this:— “What amount of debts, if any, due by Gbulam Ghaus Khan has been paid by Ismail Khan?” That issue was fixed in reference to the seventh paragraph of the written statement, in which Ismail Khan vaguely and without any particulars said:—“The plaintiff has in his petition of plaint referred to the balance of the mortgage money due by the ancestor, but he has not mentioned the large debt paid by the defendant: the latter, like the former, is also payable from the property.”
Now no one would deny, having regard to the Full Bench ruling of this Court, and according to the principles of the Muhammadan law of inheritance, that so far as Ismail Khan was concerned, if he was in possession of the estate of Ghulam Ghaus Khan, and if he had paid the debts of Ghulam Ghaus Khan, he would be entitled to hold on to the possession of Allahdad Khan's share of that estate, so long as, and until, Allahdad Khan paid off his quota of the debts which Ismail Khan had paid; and this is not denied.
But in the plea taken by Ismail Khan which, I have said, is of the vaguest possible kind, no mention is made of any debts that were paid, and, for aught I know to the contrary, no such payments were ever made. An issue having been fixed by the Sub-Judge in reference to that question, there is not a pretence for suggesting, and Mr. Conlan frankly admits that upon the face of this record there is not a particle of proof to show that Ismail Khan ever paid a pice of the debts of the ancestors. Moreover, I have asked in vain to have pointed out to me any trace upon the record to indicate that at any stage of the trial in the first Court, [320] the Subordinate Judge, either by order or expression of opinion, actually excluded or led the defendant Ismail Khan or his pleaders to believe that he would exclude, or that it was unnecessary to produce evidence upon this point.
What, then, are the materials from which I am to infer that the Court below disposed of this case upon a preliminary point, so as to exclude any evidence of fact which was necessary for the determination of the rights of the parties? Neither Mr. Conlan nor any other person has satisfied me upon this point, and it appears to me that this being so, I am not justified, in reference to the language of ss. 562, 563 and 564 of the Code, and more especially to the prohibition contained in such last-mentioned section, to make the form of remand proposed by the rest of the Court.
It is clear, and in accordance with many expressions of opinion by their Lordships of the Privy Council, the effect of which is embodied in those sections, that a Court of appeal should not send a case back to a Court of first instance in such a way as to open the door to one or both of the parties making a new case with fresh evidence—a most dangerous thing to do in this country. There is nothing whatever to show in the present instance that Ismail Khan was prevented from producing evidence or led to believe by the Court of first instance that the evidence upon the question of payment of debts was unnecessary because it was going to decide the case upon a preliminary point. I do not think that we are entitled, sitting here upon this point, and upon a mere speculation as to the possibility of Ismail Khan having had some claim to an equitable charge in respect of the debts of Ghulam Ghaus, paid by him, to remand the case back to the Court of first instance generally, so as to allow of a third person, who has acquired his interest pendente lite and after the appeal was filed here, to open up this part of the defence de novo and call witnesses and give other proof which Ismail Khan never attempted to produce.
There was undoubtedly, and the learned Chief Justice has put his finger upon that, a defence set up by the three persons, lessees of the villages from Ismail Khan, against whom the relief sought [321] is stated in the third paragraph of the plaint. It is true, no doubt, that if those lessees had proved the matter set out in their statement of defence, there might have been, prima facie a good answer in point of law to the claim of the plaintiff. In respect of these defendants it may be said that no issue was specifically stated by the Sub-Judge in respect of their defence, and their answer to the plaintiff's claim, which would be direct notice to them to give their evidence in regard to it. That being so, I am disposed to assist them to this extent, that, as the Court of first instance failed to frame an issue with regard to these defendants, and as the determination of such an issue appears to me essential for the right decision of the case, I would remit an issue under s. 566 of the Code to the lower appellate Court for determination.
The matter therefore stands thus:—In my opinion, as regards Ismail Khan, we cannot remand the case under s. 562 of the Code, because it has not been disposed of upon a preliminary point so as to exclude evidence of fact, and we should therefore proceed to dispose of it upon the evidence upon the record, if there is any. It is said for the plaintiff, and I see no reason to doubt it, that there is no evidence on the record of the payment of any debt of Ghulam Ghaus Khan by Ismaii Khan, and therefore, in regard to that particular matter, we ought, in my opinion, to dispose of it at once, and, there being no evidence, to dispose of it adversely to Ismail Khan.
With regard to the second question, I would remand an issue to try the question as to whether the defendants, lessees, did pay to Ismail Khan the rent of such land under a bona fide belief that he was the true proprietor. The question of costs would have to be determined hereafter.
Sir John Edge, C.J:— I have had an opportunity of reading and considering and in fact discussing with my brother Straight and my brother Mahmood my brother Straight's judgment, on the status of the plaintiff Allahdad Khan. With that judgment, so far as it deals with the status and rights of inheritance of Allahdad Khan, I concur for the reasons stated by my brother Straight. But I do not agree with him as to the course we should take under the circumstances.
[322] First of all we must consider s. 562 of the Civil Procedure Code. It appears to me that s. 572 applies not only to a case in which the Judge of the Court of first instance has expressly excluded evidence, but that also it applies to a case in which the parties may have been or were by the act of the Judge misled as to the issues or the evidence necessary in the case. I think it would apply to a case in which it was apparent that a Judge intended only to consider one issue, such as the status of the plaintiff as an heir as in this case, or an issue of limitation; and where the parties owing to the view of the judge on that point did not tender or bring forward their evidence. It appears to me here in this case that the main contention in the Court below, as in fact here in appeal, was as to the status of the plaintiff Allahdad Khan. In fact, during the whole of the argument of this case there was no word addressed to us by either side, so far as I remember, in regard to any of the issues, except as to the legitimacy to be inferred from the acknowledgment of Ghulam Ghaus Khan. I do believe that the probability is that in the Court below the same course was followed and that the attention of the Judge and the parties was almost exclusively directed to the exceedingly interesting point of law as to the effect of the acknowledgment made by Gbulam Ghaus Khan. It is quite true that we are told that in this case there is nothing on the record to show that any evidence was in fact excluded, not in the broad sense in which I use the word excluded, but in the contracted sense of exclusion by a rule or order of the Judge. That proposition put so broadly, I am bound to say I do not concur in. Because with regard to the issues raised by the defendants Nos. 5, 6, 7, the so-called lessees, I think it can hardly be said that their evidence was not excluded within any reading of s. 562, because the Judge for some reason omitted to frame any issue on their written statement. In their case they raised certain questions which would have to be tried. I do not express at present any view as to whether, if that written statement were proved, the allegations contained in it would amount to a defence in law, but it was the duty of the Court to inquire whether those allegations were true or not.
It is also true in this case that no affidavit is produced to show that the parties were misled, or that any evidence was excluded by [323] the order or direction of the Judge. But we have to remember this, that Ismail Khan, one of the defendants in the suit, was, we are informed practically a pauper, and these issues, which may not have been tried, may have been very immaterial tobim. I think that in this case, if we proceed to finally dispose it on the evidence on the record, it is possible that we may do very material injustice to the parties interested in this litigation. I think, unless we are satisfied that no injustice will be done by proceeding on the evidence on the record as it at present stands, we ought to satisfy our own minds by directing a remand under s. 562. The issues, except those numbered 1, 2, 3 and 4, framed by the Judge, have admittedly not been tried. There were other issues arising in the case which were not even framed by the Judge; and I do think in a complicated case of this kind it is better that we should extend the operation of s. 562 rather than limit the operation of that section. We have remanded cases under s. 562 where all the evidence was on the record, but where we came to the conclusion from the nature of the judgment that the Judge had misunderstood the case. If s. 562 be taken in its literal sense it is obvious to me that it was our duty in these cases to have tried the real issues raised by ourselves and not to have remanded them. I have never had any doubt that s. 562 would be applicable to a case in which the Judge has misunderstood the questions raised by the parties and has in consequence mistried the case. Such a trial could not be said to be a trial at all. I quite agree with what has fallen from my brother Straight that, in remanding cases under s. 562 we should take care that the parties should not have the opportunity of starting an absolutely new case; and I do not propose suggesting to the Judge to whom this case will go that he will give the parties an opportunity of starting a new case. The Judge must take the pleadings of the parties and their admissions and frame issues to dispose of all the material questions and proceed to try those issues on the merits.
For the reasons which I have given I am of opinion that this is a case to which s. 562 applies, and that we ought to remand it under that section. I have to make one observation with regard to s. 563. It appears to me to be a section which had been drafted upon an assumption that there was something in the previous section [324] to which it would apply and which gave authority to the Court to say what evidence should be taken on the remand under s. 562. We order the Court to try the case on its merits, Concurring with my brother Straight on the finding as to the status of the plaintiff, I am of opinion that this case should be remanded for the disposal of the rest of the issues under s. 562 of the Civil Procedure Code, and that the costs should abide the result.
Mahmood, J.:— I concur in what has fallen from my brother Straight as to the facts of the case, and also as to the rules of law applicable to those facts. But because, in the course of the elaborate argument which was addressed to us at the Bar, many suggestions were made as to the exact scope of the rule of Muhammadan law relating to the acknowledgment of parentage, and much was argued as to such acknowledgment being a substitute for adoption as recognised in other systems, such as the Roman or the Hindu law, I am anxious to specify my own views.
First, then, as to the facts of the case, for the reasons so exhaustively stated by my brother Straight, I have no doubt that the following conclusions are justified by the evidence:—
(1) That Moti Begam did not stand in any such position of relationship with Ghulaui Ghaus as would render her marriage with him unlawful;
(2) that she is not proved to have been ever married to any person other than Ghulam Ghaus;
(3) that she was married to Ghulam Ghaus;
(4) that the exact date of her marriage with reference to the birth of the plaintiff Allahdad is unascertainable for want of trustworthy evidence;
(5) that she cohabited with Ghulam Ghaus for a considerable number of years and was treated by him as his lawful wife;
(6) that the plaintiff Allahdad was acknowledged and treated by Ghulam Ghaus as his son;
(7) that in such acknowledgment or treatment there was no express specification as to whether Allahdad was a step-son, a legitimate son, or an illegitimate son of Ghulam Ghaus;
[325] (8) that similar acknowledgment or treatment was accorded to him by the defendant Ismail and the other children of Ghulam Ghaus by Moti Begam, and indeed by the rest of the family.
Such being the main conclusions as to the facts of the case, I am desirous of stating the propositions of the Muhammadan law applicable to these facts. My brother has so fully quoted the authorities of the Muhammadan law that I am relieved of the necessity of repeating them, and need only refer to them for formulating my propositions.
The first and perhaps the most important question in the case is whether the rule as to the acknowledgment of parentage is a rule of the Muhammadan substantive law of inheritance or merely a rule of evidence. The question is important, because unless it is a “question regarding succession, inheritance, marriage or caste, or any religious usage or institution,” within the meaning of s. 24 of the Bengal Civil Courts Act (VI of 1871) which governs this case, we are scarcely at liberty to apply the Muhammadan law in its integrity to this case, and the alternative would be almost unavoidable to apply to the question the rules of evidence, as to the admissions and presumption of legitimacy, contained in the Indian Evidence Act (I of 1872), by s. 2 of which enactment all other rules of evidence have been abolished.
Now, it cannot be denied that in all mediaeval systems of jurisprudence much confusion exists between rules of substantive, law and rules of adjective law, that is, between rules which affect the merits and go ad litis decisionem and rules which regulate the remedy and, as rules of procedure, only go ad litis ordinationem. The Muhammadan system of jurisprudence is no exception to the general rules, and I have before now felt considerable difficulty in distinguishing the rules of the substantive law of Muhammadan inheritance from the rules of evidence. I allude in particular to the case of Mazhar Ali v. Budh Singh, which related to the inheritance of a missing person, and in which, after much consideration, a Full Bench of this Court agreed in holding that the question there raised was a question of evidence and as such governed by ss. 107 and 108 of the Evidence Act.
[326] Is the question now before us one of a similar character? In order to decide this question I have been at some pains to consult the original authorities of the Muhammadan law which my brother has already quoted and I am responsible for the English translation of the original Arabic of those texts. The first of them is a passage from Birjandi which describes the exact place which ikrár or acknowledgment in general occupies in Muhammadan jurisprudence, and the passage leaves no doubt that the Muhammadan jurisconsults themselves do not treat the subject of acknowledgments as forming part of the rules of evidence, though they recognise the fact that acknowledgments resemble admissions. To use the language of Birjandi, “an acknowledgment is giving information as to the right of a person enforcible against the acknowledger, that is, the person who gives such information”, and “it is indispensable, that the acknowledgment should expressly state the subject of the acknowledgment as if it already exists, and that by the acknowledgment the proof thereof is expressed.” The author then goes on to explain that “it is not an effect of an acknowledgment that anything is for the first time founded or established.”
So far, it would seem at first sight that an ikrár or acknowledgment stands in the Muhammadan law much on the same footing as an ordinary admission as defined in s. 17 of the Evidence Act; and if the matter rested here, I confess I should have been inclined to regard the question as one appertaining to the province of the law of evidence. But acknowledgments of parentage under the Muhammadan law rest upon a footing higher than that of ordinary admissions as pure matters of evidence. The rules of the Muhammadan law applicable to such acknowledgments and the conditions under which such acknowledgments can be validly made are stated in the authoritative texts which my brother Straight has already quoted, and to those texts I wish to add a passage from the Hedaya which sums up the law upon the subject:—
“If a person acknowledge the parentage of a child who is able to give an account of himself saying ‘This is my son,’ and the ages of the parties be such as to admit of the one being the child of the other, and the parentage of the child be not well known to [327] any person, and the child himself verify the acknowledgment, his parentage is established in the acknowledger, although he (the acknowledger) be sick; because the parentage in question is one of those things which affect the acknowledger himself only and no other person. It is made a condition, in this case, that the ages of the parties be such as to admit of the relation of parentage; for if it were otherwise, it is evident that the acknowledger has spoken falsely. It is also made a condition that the parentage of the boy be unknown; for if he be known to be the issue of some other than the acknowledger, it necessarily follows that the acknowledgment is null. It is also made a condition that the boy verify the acknowledgment; because he is considered as his own master, as he is supposed able to give an account of himself. It were otherwise if the boy could not explain his condition; for then the acknowledgment would have operated without his verification. It is to be observed that the acknowledgment, in this instance, is not rendered null by sickness, because parentage is an original and not a supervenient want. By the establishment of the parentage, therefore, the boy becomes one of the acknowledger's heirs in the same manner as any of his other heirs” (Hamilton's Hedaya by Grady, p. 439).
In commenting upon this passage of the Hedaya, the author of the Kifaya points out that the rule as to acknowledgment of parentage is based upon the words of the Koran, “call them after their fathers;” and the author explains that such acknowledgment is sufficient, “because the burden of the obligation in respect of the child rests especially on the father, and the latter's acknowledgment affects himself personally and is thus accepted without any verification by the mother”. Another celebrated commentary on the Hedaya, the Fathul Qadir, in explaining the rule contained in the above passage as to the condition that the acknowledged child should be of unknown parentage, goes on to say that the condition has been imposed, because otherwise the [328] descent of the acknowledged child could not be established from the acknowledger since “descent after it is established is not susceptible of the annulment”.
The last point is important, and is to the same effect as the text from the Ashbah and the first text from Vol. I of the Faiawa-i-Alamgiri, both of which are quoted in my brother Straight's judgments. The same rule is stated in another portion of the Faiawa-i-Alamgiri; and to use the words of Mr. Baillie's translation, “descent, when once established, cannot be dissolved or cancelled, neither can it be transferred from one person to another” (Baillie's Dig., p. 408).
The passage from the Ashbah, however, throws the greatest light upon the nature of such acknowledgments and their effect under the Muhammadan law. That passage shows that whilst ordinary acknowledgments stand upon one footing an exception is made in favour of such acknowledgments as relate to matters of personal status, and that in such cases the law does not allow cancellation or annulment of the acknowledgment. This peculiarity of such acknowledgments, that is, the permanencey of their effect when duly made, upon the personal status of the persons in respect of whom such acknowledgments are made, is in itself sufficient to justify the conclusion that the acknowledgment of parentage, though it has reference to evidential presumptions and other considerations, is in effect a rule of personal status in the eye of Muhammadan law; and I am fortified in this conclusion by the uniform practice of the Courts in India and of the Privy Council in dealing with such questions as falling within the province of the Muhammadan law of inheritance and marriage.
The various propositions of the Muhmmadan law as they apply to the fact of this case and the steps of legal reasoning upon which those propositions proceed may now be stated.
The right of inheritance under the Muhammadan law is based upon three grounds described by Mr. Baillie to be, “nusub, which [329] is kurabat, or kindred; special cause, which is marriage, that is, a valid marriage, for there are no mutual rights of inheritance by a marriage that is invalid or void, according to all, and wula, which is of two kinds, wula of emancipation and wula of Moowalat, or mutual friendship.” In this case we are concerned only with nusub, that is, relationship by consanguinity of descent, which in Muhammadan law means legitimate descent only, so far as inheritance from or through males is concerned, and marriage between the parents of the inheritor is a condition precedent to his legitimacy. “The intercourse of a man with a woman who is neither his wife nor his slave is unlawful and prohibited absolutely. When there is neither the validity nor the semblance of either of these relations between the parties, their intercourse is termed zina and subjects them both to huad or specific punishment, for vindicating the rights of Almighty God” (Baillie's Dig., p. 1). “The offspring of a connection where the man has no right nor semblance of right in the woman, by marriage or slavery, is termed wulud-ooz-zina, or child of zina, and is necessarily illegitimate,” (26, p. 3). The Durrul Mukhtar states the acknowledged general rule that “an illegitimate child as well as a child of curse or imprecation inherits only from the relations on the mother's side by reason of its being no residuary and having no father,” (Tagore Law Lectures. 1873, p. 123). The same is the effect of the rule as stated in Rumsey's Chart of Muhammadan Inheritance (p. 342, 3rd ed.); and it is more fully expressed in Aini, where it is laid down that “illegitimate children and children of curse do not inherit, except from the mother's side, because their parentage on the father's side is wanting; so they do not inherit from their putative fathers, but as their parentage on the mother's side is established, they, on account of such parentage, inherit only from their mothers and half brothers by the mother's side the legal shares and no more.” (Tagore Law Lectures, 1873, p. 123). “When a man has committed zina with a woman, and she is delivered of a son whom he claims, the descent of the son from the man is not established, but it is established from the woman by the birth.” (Baillie's Dig., p. 411).
From these passages two points are perfectly clear, viz., first, that, so far as inheritance from males or through males is concerned, the existence of legitimacy of descent or consanguinity is a condition [330] precedent to the right of inheritance: and secondly, that such legitimacy depends upon a valid marriage or connection between the parents of the inheritor. Now, the Muhammadan jurists themselves in dealing with the question of parentage, nusub, or relationship by consanguinity, recognise a distinction between cases in which inheritance is claimed from or through the father and inheritance claimed from or through the mother. “Maternity admits of positive proof, because the separation of a child from its mother can be seen. Paternity does not admit of positive proof, because the connection, of a child with its father is secret; but it may be established by the word of the father himself or by a subsisting firash (bed), that is, a legally constituted relation between him and the mother of the child” (Baillie's Dig., p. 389). And it may be taken as an undoubted proposition of the Muhammadan law of inheritance that in no case can an illegitimate child, that is, the offspring of zina or illicit intercourse, be entitled to inheritance from his father or through him, because he is regarded as nullius jilius, that is a person whose nusub or descent from the father is wanting.
I have already said that in the case of establishing descent from a mother and claiming inheritance from her, legitimacy is not a condition precedent to such right of inheritance; but in the case of inheritance from the father legitimacy is absolutely necessary before any such right can be claimed. The question then is, whether in cases like the present, where the paternity of a child, that is, his legitimate descent from his father, cannot be proved by establishing a marriage between his parents at the time of his conception or birth, the Muhammadan law recognises any-other method whereby such marriage and legitimate descent can be presumed, inferred, or held to be established as a matter of substantive law for purposes of inheritance.
In dealing with this part of the case much help is rendered by the case-law upon the subject. In Khajah Hidayat Oolah v. Rai Jan Khanum the principle was laid down by the Lords of the Privy Council “that, under the Muhammadan law, where a child has been born to a father of a mother where there has been [331] not a mere casual concubinage, but a more permanent connection, and where there is no insurmountable obstacle to such a marriage, then, according to the Muhammadan law, the presumption is in favour of such marriage having taken place;” and their Lordships goon to add, “that in considering this question of Muhammadan law we must, at least to a certain extent, be governed by the same principles of evidence which the Musalman lawyers themselves would apply to the consideration of such a question” (p. 318). The general effect of the ruling in that case is that continual cohabitation of the parents and acknowledgment of the child by the father is presumptive evidence of marriage between the parents and of the legitimacy of the offspring. Their Lordships had to deal with a similar question in Mahomed Bauker Hoossain Khan v. Shurf-oon-nissa Begam in which their Lordships held, that although by the Muhammadan law the legitimacy of a child of Muhammadan parents may be presumed or inferred from circumstances, without any direct proof either of a marriage between the parents or of any formal act of legitimation, in the absence of evidence or circumstances sufficient to found such a presumption or inference, a claim by a party as a legitimate son to share in an intestate's estate should be dismissed. But whilst laying down this rule their Lordships went on to say:—
“But in arriving at this conclusion, they wish to be distinctly understood as not denying of questioning the position that, according to the Muhammadan law, the law which regulates the rights of the parties before us, the legitimacy or legitimation of a child of Muhammadan parents may properly be presumed or inferred from circumstances without proof, or at least without any direct proof, either of a marriage between the parents or of any formal act of legitimation” (p. 159).
The exact effect of these rulings was again considered by their Lordships in the important case of Ashruf-ood-Dowlah Ahmad Hossein Khan v. Hyder Hossein Khan, where their Lordships observed:—
“The presumption of legitimacy from marriage follows the bed and whilst the marriage lasts, the child of the woman is taken to be the husband's child; but this presumption follows the bed, and [332] is not antedated by relation. An ante-nuptial child is illegitmate. A child born out of wedlock is illegitimate; if acknowledged, he acquires the status of legitimacy. When, therefore, a child really illegitimate by birth becomes legitimated, it is by force of an acknowledgment express or implied, directly proved or presumed. These presumptions are inferences of facts. They are built on the foundations of the law, and do not widen the grounds of legitimacy by confounding concubinage and marriage. The child of marriage is legitimate as soon as born. The child of a concubine may become legitimate by treatment as legitimate. Such treatment would furnish evidence of acknowledgment. A Court would not be justified, though dealing with this subject of legitimacy, in making any presumption of fact which a rational view of the principles of evidence would exclude. The presumption, in favour of marriage and legitimacy must rest on sufficient grounds, and cannot be permitted to over-ride, over-balancing proofs, whether direct or presumptive” (pp. 113-14).
This passage, if taken as an abstract enunciation of the law, might lend colour to the contention that even a child whose illegitimacy is proved may be legitimated by an acknowledgment, and indeed it was upon this interpretation of that passage that a considerable portion of the argument on behalf of the plaintiffs appellants proceeded. But the Lords of the Privy Council themselves in Muhammud Azmat Ali Khan v. Musammut Lalli Begam took occasion to explain the exact effect of that passage and went on to say:—
“These observations must be taken with a reference to the facts of that case, and in that case it appeared that there was a Moottah marriage after the birth of the child. There was no acknowledgment, and the treatment of the child was equivocal. Sometimes he was treated as son and at others not; and indeed by a deed executed by the father for that purpose he was distinctly repudiated by him as his son. In that case it was decided that in the absence of express acknowledgment, the evidence was insufficient either to raise the presumption of a marriage which in point of time would cover the birth of the child or of an acknowledgment. The facts and [333] questions in that case were very complicated, and some of the passages in the judgment referred to by the Judge below can only be understood by referring to the question to which they were addressed” (p. 19).
These observations are, in my opinion, an important limitation upon the interpretation of the passage on which so much reliance was placed at the Bar in the argument for the appellants. The general effect of the ruling in the case last cited is that, according to Muhammadan law, the acknowledgment and recognition of children by a father as his sons gives them the status of sons capable of inheriting as legitmate sons, and this rule was affirmed again by the Privy Council in Sadakat Hossein v. Syed Mahomed Yusuf, where their Lordships expressly refrained “from offering any opinion upon the very important question of law” whether “the offspring of an adulterous intercourse could be legitimated by any acknowledgment” (p. 36).
This last reservation is to my mind a most significant one, as showing that the passage which I have quoted from their Lordships' judgment in Ashruf-ood-Dowlah Ahmad Hossein Khan v. Hyder Hossein Kahn must not be understood loosely in the sense of being an abstract enunciation of the law applicable to all cases; for I cannot help feeling that if that passage were to be interpreted loosely and regardless of the facts of the case in which those observations were made, there would have been no necessity for reservation of opinion by their Lordships in the case of the acknowledgment of an offspring of an adulterous or even of an incestuous intercourse. Illegitimacy under the Muhammadan law, as indeed under other systems, arises from the absence of a lawful matrimonial relation between the parents of the child; and if illegitimacy which is proved and placed beyond doubt were no impediment to an acknowledgment, there would no be logical reason why the offspring of an adulterous or incestuous intercourse should not acquire the status of legitmate children when acknowledged by the father.
After having carefully considered the various rulings of the Lords of the Privy Council in the case to which I have referred, I am of opinion that their Lordships never intended to go the [334] length of laying down the rule that a child who is proved to be illegitimate, either in consequence of marriage between his parents being disproved, or being unlawful, could be legitimated by an acknowledgment. All the cases which their Lordships had before them were cases in which the question of marriage itself was a matter in dispute and involved in obscurity which reference to the legitimacy of the child. In other words, those cases were such as left either the fact or the exact time of the alleged marriage a matter or uncertainty, that is, neither proved nor disproved; and their Lordships in dealing with those cases applied the principles of Muhammadan law of acknowledgment of parentage with reference to legitimacy for purposes of inheritance. Any other view of those cases would involve the proposition that their Lordships intended to go far beyond the authority of the Muhammadan law itself as to acknowledgments of parentage and legitimacy for purposes of inheritance.
Yet such was the effect of the argument addressed to us in support of the appeal, and indeed that argument want the length of contending that the Muhammadan law as to acknowledgment of parentage was nothing more or less than a substitute for affiliation by adoption as recognised by the Roman or the Hindu law that is, an affiliation which has no reference either to the consanguinity of descent of the acknowledged child from the acknowledger or to the legitimacy of such descent. I have already said that this contention is not warranted by any of the rulings of the Lords of the Privy Council, and I now proceed to show that it is positively opposed to the rules of the Muhammadan law itself.
Not a single authority of that law has been quoted, and I am not aware of any, which would justify the conclusion that legitimacy of descent from a father is not an absolutely indispensible condition precedent to the very existence of the right of inheritance from the father, and I have already shown that children born of zina (which means fornication, adultery, or incest) can never be legitimated or entitled to inherit from their father. Nor can such children be made legitimate by any kind of acknowledgment where the illegitimacy is a proved and established fact. The Muhammadan law of acknowledgment of parentage with its legitimating effect has no reference whatsoever to [335] cases in which the illegitimacy of the child is proved and established, either by reason of a lawful union between the parents of the child being impossible (as in the case of an incestuous intercourse or an adulterous connection), or by reason of marriage necessary to render the child legitimate being disproved. The doctrine relates only to cases where either the fact of the marriage itself or the exact time of its occurrence with reference to the legitimacy of the acknowledged child is not proved in the sense of the law as distinguished from disproved. In other words, the doctrine applies only to cases of uncertainty as to legitimacy, and in such cases acknowledgment has its effect, but that effect always proceeds upon the assumption of a lawful union between the parents of the acknowledged child. This is abundantly clear from the authorities from which my brother Straight has already quoted. Among those authorities the passages from the first volume of the Fatawa Alarngiri may at first sight contradict the view to which have I given expression, and I am therefore anxious to explain that those passages have no such effect. The first of those texts only shows that an acknowledgment of parentage when duly made cannot be negatived. The second text, which relates to the case of a majbub acknowledging a child and such acknowledgment taking effect, notwithstanding the acknowledger's mutilated condition, proceeds upon the general principle of Muhammadan law against bastardizing children, and the words “the child necessarily becomes his even without proof of sexual intercourse” which occur in the text must not be understood to mean any thing beyond the, rule that even in such a case acknowledgment of parentage obviates the necessity of ascertaining either the time or the extent of the mutilation of the acknowledger's person. The text assumes the existence of a valid marriage and the possibility of the acknowledged child's legitimate descent from the acknowledger, and I have no doubt that it would be misunderstanding the text if it were held to mean that even where there is a physical impossibility of the child's descent from the acknowledger, the child becomes of one who could not be his father. The reason of the rule relates not to any theory of adoption, but to the theory that an [336] acknowledgment of parentage obviates any investigation as to the physical condition of the acknowledger's potency or impotency for procreating the offspring of a valid marriage. The same is the explanation of the latter part of the second text which my brother Straight has quoted from the Fatawa Kazi Khan.
The third text from the Fatawa Alamgiri requires no explanation, but the fourth text does require reference to show that it does not contradict the view which I have taken as to the assumption of legitimacy being a condition precedent to the validity of an acknowledgment of parentage. Now that text begins by assuming that the offspring was the result of an illicit intercourse, but the birth of the child took place during lawful wedlock, and it was acknowledged by the father. Now, so far as my view that the assumption of a legitimate descent is a condition precedent to the validity of the acknowledgment of parentage is concerned, it is enough to point out that in the text itself the condition is imposed that the birth of the child should take place after the expiration of six months (the shortest period of gestation under the Muhammadan law) from the date of the marriage—a condition which proceeds upon the theory of the possibility of a legitimate birth. The same is the theory upon which the latter part of the text proceeds, although it relates to birth within six months of the marriage, because the implication there is that the acknowledgment of the father must be taken to involve the possibility of a legitimate intercourse between the parents of the acknowledged child at the time of his being begotten. The text would be misunderstood if not considered in the light of the circumstance that divorce under the Muhammadan law rests entirely with the husband, that it may under certain limitations be retracted by him, and that there may be a remarriage between the parties. It is no doubt in view of this circumstance that the Muhammadan jurists have placed acknowledgment of the parentage of a child by a man upon an exceptionally strong footing, as obviating the necessity of an investigation into facts which would otherwise be necessary to establish the legitimacy of the child, with reference to the marriage of his parents, the period of his conception, and the date of his birth. The principle of the Muhammadan law on this bead is much the same [337] as that adopted by the Courts of justice in England, where the rule is represented by the maxim semper praesumitur pro legitimatione puerorum, or by a cognate rule semper praesumitur pro matrimonio, the authority of which was recognised in Piers v. Piers. And it is important to observe that in the very text with which I am now dealing it is expressly indicated that an acknowledgment of parentage is ineffective if accompanied by an intimation that the acknowledged offspring was the result of an illicit intercourse. The words of the text are:—“if he says that the child is born of me by illicit intercourse, the descent is not established and he will not inherit from him,” and they leave no doubt in my mind that it is only by misapprehension of the principles of Muhammadan law that it can be held that a person proved to be a walad-ooz-zina, that is, the offspring of a fornication, adultery, or incest, can ever be legitimated by any kind of acknowledgment by the father. It is upon the same principles that the first and third texts from the Fatawa Kazi Khan quoted by my brother Straight must be explained, and the latter part of the first text, as also the third text, show that the matter as to the effect of acknowledgment of parentage, though a rule of substantive law, proceeds entirely upon an assumption of the possibility of legitimate descent of an acknowledged child from the acknowledger, and that the rule as to the effect of such acknowledgment does not extend to cases where such legitimate descent was impossible owing either to the impossibility of a valid marriage between the parents of the child, or owing to the existence of such a marriage being disproved by trustworthy evidence. And I have no doubt that I am representing the views of the Muhammdan jurists rightly when I say that there is no warrant in the principles of the Muhammadan law to justify the view that a child proved to be the offspring of fornication, adultery, or incest could be made legitimate by any act of acknowledgment by the father. I repeat that the rule is limited to cases of uncertainty of legitimate descent and proceeds entirely upon an assumption of legitimacy and the establishment of such legitimacy by the force of such acknowledgment.
[338] I have dwelt upon this point at such length because the judgment of Petheram, C.J, now under appeal begins by saying:—
“The evidence in this case proves, in my opinion, that the plaintiff-appellant Allahdad was the illegitimate son of Ghulam Ghaus Khan. I also think upon the evidence that he was born before the marriage of Ghulam Ghaus Khan with Moti Begam, and therefore it has been established that he was, in the inception at all events, an illegitimate son of his father.”
Similarly, my brother Brodhurst, in summing up the effect of the evidence in this case, went even further than Petheram, C.J, in saying:—
“The following appears to be the established facts:—that Allahdad was not born in wedlock; that he was the son of Moti by an unknown father; that his mother was at the time of his birth and up to the time that she married Ghulam Ghaus a prostitute.”
If I had taken the same view of the evidence as Petheram, C.J, or my brother Brodhurst, as to the parentage or birth of Allahdad, I should have found it impossible to have favoured his claim; but according to the view of the facts which my brother Straight has taken, and in which I concur, the date of the marriage of Ghulam Ghaus with Moti Begam with reference to the birth of Allahdad is wholly uncertain owing to want of trustworthy evidence, and, indeed, it is not even established that he was the Datural son of Ghulam Ghaus. But direct evidence of paternity is not to be expected in such a case any more than in a case where the question of alleged illegitimacy does not complicate the facts. Indeed, in the Muhammadan law, as in other systems of jurisprudence, direct proof of paternity is not required, and rules of presumption more or less stringent are adopted by various systems as furnishing the place of absolute proof of paternity which, ex necessitate rei, cannot be proved by positive and direct evidence, because, as the Fatawa Alamgiri puts it, “the connection of a child with his father is secret,” as distinguished from “maternity, which admits of positive proof, because the separation of a child from its mother can be seen.” To sum up the matter, I agree in the views of my brother Straight in holding that the entire question of the descant, birth, and legitimacy of Allahdad is involved in obscurity owing [339] to the exact date of his mother's marriage with Ghulam Ghaus being unascertainable, and that, therefore, this case presents all those conditions to which the Muhammadan law as to the acknowledgment of parentage is most appropriately applicable; and further, as my learned brother has shown here, the requisite acknowledgment in words and by treatment was made by Ghulam Ghaus without any such intimation of Allahdad being the offspring of illicit intercourse as would vitiate the effect of the acknowledgment according, to the texts, which my learned brother has quoted.
Such being my view of the facts of the case, it is not necessary to enter into any elaborate discussion as to bow far the provisions of s. 112 of the Indian Evidence Act (I of 1872), as to birth during wedlock being conclusive proof of legitimacy, would affect a case such as this. That section of course proceeds upon adopting the period of birth, as distinguished from conception, as the turning point of legitimacy, it is a peculiarity of the English law that it does not concern itself with the conception, but considers a child legitimate who is born of parents married before the time of his birth, though they were unmarried when he was begotten” (Lord Mackenzie's Roman law p. 133, 4th ed).
That peculiarity of the English law has no doubt been imported into India by s. 112 of the Indian Evidence Act, and it may some day be a question of great difficulty to determine how far the provisions of that section are to be taken as trenching upon the Muhammaclan law of marriage, parentage, legitimacy, and inheritance, which departments of law under other statutory provisions are to be adopted as the rule of decision by the Courts in British India Fortunately the difficulty does not arise in this case owing to the date of the marriage of Ghulam Ghaus with Moti Begam with reference to the birth of Allahdad being uncertain, and I need not therefore refer to the difficulty any further than by saying that there is enough authority in the text of the Muhammadan law to show that, under that system of jurisprudence, questions of legitimacy are referred to the date of the conception of the child and not to the period of his birth.
Nor need I dwell much upon that part of the argument of the learned Pandit for the appellant which aimed at showing that the [340] Muhammadan rule as to the acknowledgment of parentage is only a substitute for adoption as understood in the Hindu and the Roman system of jurisprudence, or that the rule of the Muhammadan law is the same as the Roman or the Scotch rule relating to the legitimation of children per subsequens matrimonium, that is legitimation of ante-nuptial children whose illegitimacy is proved and admitted by subsequent marriage between the parents. So far as the argument refers to the Hindu law of adoption, I need only say, with reference to the numerous authorities which were considered by me in Ganga Sahai v. Lekhraj Singh, that adoption under that system has no reference to the natural descent of the adopted child from the adoptive father; that adoption, at least in its principal form, is established by a gift from the parents of the child to the adoptive parents; that the power of adoption itself is based upon religious considerations relating to the spiritual welfare of the adoptive father in the life to come after death; that the effect of such adoption takes away the adopted child from the family of his natural parents and affiliates him to the family of the adoptive father. Further, under that law only male children can be adopted for religious reasons, although no doubt secular considerations, such as the continuity of a family and devolution of inheritance, may form motives of adoption. None of these main elements of the theories upon which the Hindu law of adoption proceeds is common to the Muhammadan law, for there, as I have shown, acknowledgment of parentage proceeds upon the theory of actual descent of the acknowledged child (whether male or female) from the father who acknowledges it, and such descent being the result of a legitimate intercourse between the parents, and when either of these two essentials is disproved, the one by proving that the acknowledged child is the offspring of another man, the other by proving either that marriage between the acknowledgerand the mother of the child was impossible or did not exist at the time which would make the child legitimate, the acknowledgment itself would be ineffective.
For similar reasons there is absolutely no analogy between the Roman law of adoption and the Muhammadan law of the acknowledgment of parentage. Under the Roman system adoption, [341] whether in the form of arrogatio or in the later form of adoptio proper, was simply one of 4;he methods of acquiring patria potestas, that is the rights of control enjoyed by the head of a Roman family over his children, and it went through various stages of modification both as to the method by which it was acquired and as to its conditions and effects upon the adopted children. The history of the law and its rules have been well summarized by Mr. Hunter in his work on Roman Law (pp. 58-66), and by Colquhoun in his work on Roman Civil Law (Vol. I., ss. 683-705, pp. 545-558). It is not necessary to enter into any detail of the reasons and rules which distinguish the Roman adoption from the Muhammdan law as to the acknowledgment of parentage, and it is enough to say that before the age of Islam adoption by a feigned parturition was common and well recognised among the ancient Arabs, that the cognate as well as the agnate rights were attributed to children so adopted, and that such adoption and its legal effects were abrogated by the express words of the Koran and have never since found a place in Muhammadan jurisprudence in connection with marriage, inheritance, or for any other legal purpose (see Colquhoun's, J. Roman Civil Law, s. 707, Vol. 1, p. 559).
Then, so far as legitimation is concerned as a rule of the Roman Law and of the Scotch Law, I need only refer again to Colquhoun's Roman Civil Law (ss. 660, 666, 667, and 683) and to Lord Mackenzie's Roman law (pp. 130-34), which describe the rules, conditions, and effect of legitimation under both those systems, and it only requires a comparison between those rules and the rules of the Muhammadan law as to acknowledgment of parentage to show that no analogy exists between the principles upon which those rules proceed and those upon which the Muhammadan rule of the acknowledgment of parentage is founded. Putting the matter shortly, the former two systems proceed upon the principle of legitimating children whose illegitimacy is proved and admitted, whilst the Muhammadan law relates only to cases of uncertainty and proceeds upon the assumption that the acknowledged child is not only the offspring of the acknowledger by blood, but also the issue of a lawful union between the ackowledger and the mother of the child. To illustrate this distinction I may refer to the rule adopted [342] in Soctland and I may also say in Prance (Lord Mackenzie's Roman law, pp. 132-33), as to the legitimation of ante-nuptial children by reason of a subsequent marriage between their parents— per subsequens matrimonium. In both those countries the marriage itself, subject to certain restrictions, has the legitimating effect. No such rule is known to the Muhammadan law and we should really be introducing doctrines foreign to that system if, influenced by the analogies furnished by the Roman, the French, or the Scotch law of legitimation, we were to place acknowledgment of parentage under the Muhammadan law on the same footing as the rule of legitimation per subsequens matrimonium rests on in the foreign systems of law to which I have referred.
It is apparent from what I have said that I fully concur with my brother Straight as to the weight of evidence and the facts of this case, and that I have as a matter of law arrived at the same conclusion as he has arrived at with reference to the status of the plaintiff Allahdad to be that of a legitimate child of Ghulam Ghaus, and as such entitled to inherit from the latter and entitled, to maintain the suit. But then comes a question upon which, unfortunately, I am unable to agree with my learned brother, namely, the question as to what order we should pass upon this appeal. The facts of the case and the pleadings of the parties show that this is one of those cases which fall within the purview of the Full Bench ruling of this Court in Jafri Began v. Amir Muhammad Khan and of a Division Bench ruling in Muhammad Awais…(Plaintiff); v. Har Sahai…(Defendant).*. These rulings show that no absolute and unconditional decree should be passed for possession in favour of the plaintiff, if it is true that during his-remaining out of possession debts due by the deceased Ghulam Ghaus Khan were lawfully paid, by the heirs in possession. If such payment of debts be proved, the effect would be that the payment of a proportionate share of such debts would be a condition to which the decree in favour of the plaintiffs would be rendered subject with reference to the various-equities that may arise in the case.
Have we, then upon the record any material for framing such a decree? The learned counsel for the parties are agreed that there is no sufficient material upon the record to enable us to frame such [343] a decree. All that is contended by the learned Pandit for the appellants is that, in the absence of such materials, it is the duty of this Court as the Court of appeal to decree the suit absolutely without any further remand for a proper trial of the points upon which the equities aforesaid would proceed. It is important to observe that not only the heirs of the deceased Ghulam Ghaus Khan, but also three lessees, were parties defendants to the suit, and it is clear that in a suit of this character, if the Court below had framed adequate issues arising out of the proceedings of the parties and after taking evidence thereon had adjudicated upon those issues, we should have been bound by s. 564 of the Code of Civil Procedure to go ourselves into the merits of the evidence and to refrain from a remand such as s. 562 of the Code contemplates. But for the reasons stated by the learned Chief Justice such is not the case here; and agreeing with him in the interpretation of the law upon the subject of remand for new trials under s. 562 of the Code of Civil Procedure, I hold that all that the learned Judge of the lower Court tried and decided in this case was the preliminary question of the plaintiff Allahdad's status to sue as the heir of the deceased Ghulam Ghaus, and that, by reason of the view taken by that Judge upon this point of status, the rest of the case was not tried upon the merits, and that, therefore, the case is a fit one for remand under s. 562 of the Code of Civil Procedure.
I agree with the learned Chief Justice in the order which be has made.
Cause remanded.