I11 MOORE IND. APP., 296 KHAJAH BIDAYUT OOLLAH

desirable that it should be known to all those who are interested in this property,

that the question of fact as to division or no division, appears to be the orlly point

on which the main question of title to this property will ultimately depend. We

think three years is a proper time after the Decree is received in India and dis-

closed to the parties.

[For subsequent litigation in connection with the same subject-matter (commonly

referred to as The Shivagugna Case), see 9 Moo. Ind. App. 539; 11 Moo. Ind.

App. 50; L.R. 2 , Ind. App. 169; L.R. 8, Ind. App. 99.1

[295] KHAJAH HIDAYUT OOLLAH,--AppeZlant; RA1 JAN KHANUM,--Re-

spomdevzt-* [Aug. 1, 2, 18441.

O n Appeal from tJie SuddPi. Uewanny Adawlut a t Bengal.

By the Mahornedan law, continual cohabitation and acknowledgment of parentage

is presumptive evidence of marriage and legitimacy [3 Moo. Ind. App.

317-8, 3231.

The original parties to this Appeal were the widows and son of Fyz Ali Khan,

deceased, and the subject iii dispute was the right of the Respondent, Rai Jan

Khanum, as widow, suing for herself and on behalf of her son, Saadat Ali Khan, a

minor, for Rs. 188,525. 8 anas, 9 gundas, being a 15-ana share, the alleged amount

of their succession on a distribution according to the Mahomedan law of inheritance

of the real and personal estate of the late Fyz Ali Khan.

The following facts and circumstances gave rise to the Appea1:-

Fyz Ali Khan, deceased, was the Zemindar of kismut pergunna Atya, and other

real and personal property.

In the month of Phagoon 1203 (7th March 1797, A.D.), Fyz Sli Khan intermarried

with the Respondent, Rai Jan Khanum, who was then about ten or twelve years

o i age.

The marriage was celebrated in the presence of wit-[296]-nesses, and on the same

day Fyz Ali Khan, as it was alleged, executed a deed of marriage settlement, endow-

ing the Respondent with a dower of 2000 gold mohurs and 21,000 sicca rupees, thc

payment of a third of which was to be postponed as long as the marriage should

remain in force.

After the celebration of the marriage, the parties cohabited together as husband

and wife, and were so universally acknowledged and reputed by their neighbours

and acquaintances.

In the year 1215 (1808-9, AB.), the Respondent, Rai Jan Khanuni, gave birth to

a daughter, the issue of the marriage, which survived but a short time.

In the year 1813, A.D., Fyz Ali Khan was about to be married to the original

Appellant, Shums-oon-Nissa. The Respondent, Rai Jan Khanum, opposed this second

union, and she presented a petition to the Zilla Court of Mymensing, setting forth

the conditions contained in her marriage deed of settlement, and praying that her

husband might be prevented from granting a deed of marriage settlement without

her concurrence. On this occasion no question was raised as t o Rai Jan Khanum

being the wife of Fyz Ali Khan, but (apparently on the ground of Rai Jan Khanuni

not being entitled to require the interposition of the Court) the petition was, by

an Order of the 11th of December 1813, rejected; and on the 16th of December

1813 a marriage was celebrated between Fyz Ali Khan and Shums-oon-Nissa, and a

marriage settlement was thereupon executed in her favour by Fyz Ali Khan. Both

* Present : Members of the Judicial Committee,-The Lord President, the Vice-

Chancellor Knight Bruce, the Right Hon. Dr. Lushington, and the Right Hon. T.

Pemberton Leigh.

Privy Councillors,-Assessors,-Sir E. H. East, Bart., and Sir E. Ryan, Knt.

510

-~~ ~ - _____~__ .

~~

2). RA1 JAN ~~~~~~ [1844] 111 ~~~~E IND. APP., 297

wives cont~nued ta live with Fyz AIi Rhan until about the year 1816, when the Appt.1-

lant, ~ h u ~ s - o o n - ~ i s s a Kh num, was reported to have eloped from his house and

took up her residence at Dacca.

12971 In the year '1816, F p dli Khan, in consequence, as was alleged, of the use

of opium and other ~ n ~ ~ i c a t i n ~ things, became incapable of attending to business.

~ ~ o c e e d i n g s were, therefore, taken, pursuarit, to R e ~ u ~ a t i o n X. of 1193, by the Court

of Wards, for the purpose of ascertaining his capability to take care of himself and

his pro pert^, under which the Collector of the { ~ i s t r ~ c t was directed to take charpe

of his estates, and to name a proper person t o be the guardian of the person of F~ .L

dli Khan.

The Collector accordingly took possess~on of the estates of Fyz Al i Kha% and cm

the 13th of Jury 1516 reported the faet to the Court of Wards, r ~ o m ~ e n d ~ ~ ~ one

Rani Chunder ~ h a ~ o r j i a as ~ u a r d i a n to take care of his person, with a salary of

t ~ ~ , e n t ~ f i ~ e rupees per menseni, and an allowaiice of 8s. 200 per mensem for tlie main-

tenance of Fyz Al i Khan and his two wives and mother. The recoi~?~~endation of

the Collector was approved of by the Court of Wards.

On the 20th of December 1817, A.D., the ~espoiident, Rag Jan K l ~ a n ~ ~ ~ . being

pregnant, presented a petition to the Court of Wards, informing them of her sitva-

tion, and praying that orders might be issued for paying the expenses which nzipht.

be incurred by acts of festivity and charity according to the custom of the family

~ o n s ~ ~ ~ e n ~ on the birth of a child. An order was accord~ngly issued to Rain Churtder

Chatoor~ja, the g u a r d ~ a ~ i , directing, that i f the ~espondent had been with Fyz Ali

Ehan for one year more or less, and had become pregnant, she should have a mid-

wife and other requisites.

Previous to this Order reaching the guarifian, and in the month of Poos 3224

~ ~ e ~ e ~ ~ ~ b e r 1817, and ~ ~ r i u a r y 1818, AD.), Rai Jan Khanum gave birth to a son, the

~espondent , who was born in Fyz bli Khan's house, at ~urseerabad , and named

Saadat dli Khan.

Upon the Order reaching the ~ u ~ i . d i a n , he returned an answer, dated ~ e c e ~ n ~ e r

24th, 1811, stating the birth of a son, and adding, " it is more than a year sinee the

p e t ~ ~ ~ o n e r has lised in a separate house erected by her opposite to the basa of the

Khan. The genuineness of her pregnancy will be apparent to the Nuzzoor upou

investigation.''

In the year 1822, Rai San Khanurn pet~tioned the Court of Wards for an &I-

creased allowance for herself and her infant son, whereupon the A p p e ~ a ~ t , Shurnhb

oon-Nissa, preuented a cou~ter-pet~tion, a I l e ~ ~ ~ g for the first time that the Respon-

dent, Rai Jan Khanun?, had assumed the character, and was not the wife of Fya

dli Khan, and praying that the circumstances of her marriage and the birth of her

son might be ~~ves t iga ted , and that the alfomnce made t o her might be discontinued.

Various ~ r o c e e d i n ~ s took place in c o n s e ~ u e ~ c e of this ~?etitioii n tbe c o ~ ~ e c t o ~ ' ~

Office and the Court of Wards, and, amongst others, various oEcial c o ~ ~ ~ ~ u r ~ ~ c a t i o n ~ ,

s ~ o ~ ~ i n g clearly that the ~ e s p o n d e ~ ~ t was one of tlie two wives mentioned in the

Report of 19th July 1816, and had received an allowance ~ c ~ o r d ~ n ~ l y ; and also

showing the conviction of successive Collectors, that the Respondent was properly

the wife of Fyz AIi Khan, and that Saadat Ali Khan was his son.

On the 16th of December 1824, and pending these proceedings, Fyz Ali Khan

~ e p a r t e d this life, ~ a ~ ~ n ~ , previously to his death, in the presence of his servants,

made over to h is son, whom he had a c ~ n o ~ ~ e d ~ e d , all h i s real and personal eat'ate,

leaving his son and his two Rims, Rai Jan ~ ~ i a i i u n i and S ~ u i ~ i s - o o ~ ~ - ~ j s s a Kbanum,

him surviving.

@991 ~ r i ~ ~ e d ~ ~ t e ~ y after the death of Fyz Ali Khan, the Iiespondeut, Rai Jan

Khanum, instituted proceedings before t?ie Collector of Mymensing, for the purpose

of having her infant son's, Saadat Ali Khan's, name entered in the Registry as pro-

prietor of his deceased father's z e ~ i i i d a r y and other real estate. In support of lier a p

p l ~ c a t ~ o ~ she filed the depositions of four w i t n ~ ~ ~ ~ ~ ~ proving her marriage wito& Fya

Ali Khan and the birth of Saadat Ali Khan, and the r ~ ~ c o ~ n i t i o i i of him by Fyz

Ali Khan ; she also, in consequence of a p e r w a n n ~ of the collector requiring her to

afford proof that Saadat AIi Khan was the son of her lake husband, filed the deposi-

tions of five other witnesses (four of whom were witnesses to the ~ ~ ~ a r r i a ~ e ~ , whos

evidence was conclusive as to the fact of the co~iabitation of the deceased, Fyz A1i

511

I11 MOORE IND. APP., so0 KHAJsH RIDAYUT OOLLAH

Khan, and the Respondent, as husband and wife a t Nurseerabad, where the deceased

then resided for more than a year previous to the birth of Saadat Ali Khan.

The Collector, on the 14th of January 1825, recorded his opinion in terms as

follows:-“ The parentage of Saadat Ali Khan as attaching to Fgz Ali Khan is

proved, and as the age of Saadat Ali Khan up to the time of this present writing is

seven years, it therefore appears t o be proper and expedient to register the name

of Saadat Ali Iilian for the share of the zemindary, etc., the estate left by the said

deceased, and in consequence of the minority of Xaadat Ali to retain the zemindary,

etc., under the control of the Wards, and to appoint a respectable person as guardian,

and to fix the monthly allowance of Saadat Ali above-named.’’

Shuins-oon-Nissa then instituted a suit in the Zilla Court of Mymensing against

the Respondent, in which a summary decree was pronounced, de-[300]-claring that

she should be declared entitled to and be put in possession of the whole of the estate

of the deceased upon giving sufficient security, and that the Respondent might

institute proceedings to establish her claims.

By direction of the Court of Wards, Shums-oon-Nissa’s name was registered as

proprietress of the zemindary and other the real estates of the deceased Fyz Ali

Khan.

In consequence of Shurns-oon-Nissa Khanuni having thus acquired possession of

the whole estate, the Respondent, on the 4th of September 1829, filed a plaint in

the Provincial Court of Juhangce-nagur, or as it is more commonly called the

Provincial Court of Dacca, on behalf of herself, and as mother and guardian of

Saadat Ali I&m, against Shums-oon-Nissa, in which, after setting forth her marriage

with the deceased, Fyz Ali Khan, the birth of Saadat Ali Khan, the issue of such

marriage, and the circumstances already mentioned, and that her husband, the

deceased, Fyz Ali Khan, had died, seised or possessed of zemindary property and

other real estate therein particularly enumerated, and also that the suni of

Rs. 147,000 was then standing to the credit of the estate of the deceased in the

account TT ith the Collector of Mymensing, being the surplus profits of the zemindary

and talooks, and stdting, that by the Mahomedan Law, on the whole estate being

divided into sixteen shares, one share belonged to her, the Plaintiff, and another

share to Shuins-oon-Nissa, as the widows, and the remaining fourteen shares to

Saadat Ali Khan, as the son of the deceased,-she prayed that she might, in respect

to her share and the shares of her son, the said Saadat Ali Khan, be put in pos-

session of the fifteen sixteenth parts [301] or shares of the zemindary property and

real and personal estate of the said Fyz Ali Khan, deceased, such fifteen sixteenth

parts or shares being estimated at the value of Rs. 188,525. 8a. 94p.

The Defendant appeareci and filed her answer on the 13th of April 1830, in which

she denied that the Respondent was the wife, o r that Saadat Ali Khan was the son,

of the deceased, Fyz Ali Khan.

Both parties went into evidence: the Plaintiff filed her deed of marriage

settlement with the deceased, Fyz Ali Khan, and her petition against the deceased

marrying the present Appellant ; the correspondence between the collectors of

Mymensing and the Court of Wards, together also with the depositions already

adverted to, of the witnesses of the marriage, and the birth of Saadat Ali Khan.

taken by the Collector previously to his directing the estate to be registered in the

iianie of Saadat Ali Khan. She also called and examined eight witnesses, to prove

the marriage and interview of Fyz Ali Khan with the Respondent, and recognition

by Fyz Ali Khan of Saadat Ali Khan as his son. Two of these witnesses were sub-

scribing witnesses to the Respondent’s deed of marriage settlement with the deceased,

Fyz Ali Khan ; and four others were also present at, and witnesses to, the marriage.

The Defendant also examined various witnesses, with the object of proving that

in 1796 the Respondent married a slave of the name of Mona, who lived till 1808

or 1809 ; and that previously to the time of the birth of Saadat Ali Khan, she had

illict intercourse with an Englishman.

After an examination of the above evidence, and previous to the Provincial

Court pronouncing its Decree, Mr. Charles Smith, the Judge before whom the [302]

cause was heard, entertaining an opinion that the evidence adduced by the Plain-

tiff, the now Respondent, was not sufficient to establifih her marriage with the

deceased, Fyz Ali Khan, although he considered that there was sufficient evidence

512

2‘. RAX JAN ~ ~ A N U ~ ~ [I8441 1x1 HOORE IND, UP,, 303

to prove that she lived and cohabited with him, and that Saadat Ali Khan was her

son by Fyz Ali Khan, with a view of a s c e r t a i n ~ n ~ the ~ a l ~ o i ~ ~ e d a n Law appI~cable

to the case, on the 20th of September 1531 directed the f o ~ l o ~ ~ i n g ~ ~ t e r r o g a t o r ~ to

be s u b m i ~ t ~ for the cons~deration and answer of the ~ a h o i i ~ e d ~ i ~ law-officcr

~ t tached to the Cow%:-

“ A person of the ~ a h o n ~ e d a n faith died, Ieaving a wife vi th a ninrriage settle-

ment, and a feniale uninarried, and a son of h i s loins, born of the venter of the said

unmarried feniale; in such case, according to law, do the unmarried fcmale and the

8on of her venter reccive any portion of tfic property of the deceased, or not? and

if they be entitled to receive a portion thereof, then what portion of the ~ ~ r o p e r t y

left by the said deceased appertains to each of those three persons respectivel~,

according to the ~ a h o ~ e d a ~ i Law? Write a reply thereto on a considerat~on of

the c~rc i~~ i~s t ances stated in the proceeding t r~nsmit ted within the period of three

days according to the Word of God, citing therein the name of the book, and the

precept thereof. End,”

No answer was returned by the Xahor~~edan law-officer to the i n t e ~ r o g a t o ~ y thus

put to him hy the Court, but 116, on t h s 23rd of September 1831, presented a petition

to the Court, requesting further i n f o r ~ a t i o ~ ~ . The petition was in terms as

the mind of the interrogator, to the end tElat he may [3033 not be chidden both of

God l~ereaftes and of mankind, I beg to inquire what i s meant by the words ‘ an

unmarried woman,’ fornication, or an acceptation given to them by the public.

If tile s i~ r~ i f i ca~ ion be &at which is generally applied to the terms, the explanation

shoutcl be given, for the general acceptation given by the public to the term i s not

d e t e r ~ ~ n e d ; various words such as those are ~ppl ied to p a ~ t ~ c ~ l a r Binds of legal

and illegal marriages. If the meaning Le forn~cation, it i s necessary to ascertain

the c~rcumstances of the evidence of the w~~nesses, and the grounds are indispens-

able, for, according to law, the discovery of fornieat~on is difficult, partic~larKy in

reference to a person deceased, which is considered to be imposs~ble, in so much that

until the strong grounds, which are prescribed according to the arguments used

by the learned, the followers of ‘ Hanifa,’ are obtained, the word ‘ fo~nication ’

should not be uttered by the tongue. As in the interrogatory there is not a jot of

those arguments, and the proceed~ng i s also altoget~er deficient as respects the

details of tlie evidence of the witnesses, I am unable to write ~ t , futwa, and e n t e r t a i ~

the tiope that you will require a futvFa after having satisfied those doubts, or that

you will in a general way be pleabed to state in an interrogatory or in a proceeding

the tenor of the evidence of the witnesses of both parties, and the objections thereto,

such as nisly have found place in tho happy mind of your Highness, or otherwise

that you will excuse my giving an answer, and issue orders upon my giving in the

proceeding and the ~nterrogatory enclosed therein,”

In ~ o n ~ e ~ u e n c e of this petition, Xr. Charles Smith, the ~ r o v i n c i a ~ Judge, in

accordance tvith section 4, regulation xi. of 7795, ordered that the interrogatory,

[304’j to get he^ with the other proceedings in the cause, should be transmitted to

the Registrar of the Sudder Dewanny Adawlut of Bengal, and that an answer should

be obtained to it from the ~ a h o ~ e d a n l a ~ ~ ~ c e r s of that Court,

On the 10th of December 1831, the lawofficers of the Sudder Dewanny Court

returned the following answer :-

‘‘ Cnder the above c i rc~mstance~? in the event of the proof of these fmts, that

~fussuxnat Rai San assoc~ated with Fyz Ali Khan and re~iained wi tb the other f e i ~ ~ a ~ e s

of the house of Fyz Mi Khan, and Saadat hxi Khan was born of her venter, being the

offspring of the loins of the said Fyz Ali Khan, as is to be clearly understood from tbt.

proceeding of the Appeal Court of J u h a ~ g e ~ ~ ~ a ~ u r ~ dated the 20th of ~epteNbes 1831,

AD., which is put ilp with the p r o ~ e e d ~ n g of the said. Court, dated the 20th of Septem-

ber, idem, according to law, the p a r e ~ t a ~ e of Saadat Mi Khan above named, as at-

taching to the said F p Ali Khan above xiamed, is proved, and lie and his niother, Rai

Jan, will both become heirs, and after the liquidation of debts, etc., which are first

claimable from the inl~eri~ance, the hole property of Fyz Ali Khan, deceased, being

divided into sixteen shares, one share belonging to ~ ~ u s s u n ~ a t Rai Jan above named

and ~ u s s u ~ a t Shums-oo~~-~issa ~ h a n u r ~ , the other wife of the said deceased,

respective@, and fourteen shares thereof appertaiu to Saadat Ali Khan above

follows : -“ $8 the ofti s~~oi i ld necessar~~y have a e u ~ p r e h e n s ~ o n of what is in

P.C. vri. 513 IT

named, according to the law of the division of inl~eritances, and God k n o ~ best

what i s right.”

The Provincial Court not deeming this opii~ion s u ~ c i e n t l y clear or satis€actory,

ordered a second interrogatory to be laid before the law-oficers of tlie Sudder

Dewanny Adawlut, in the fo~~owing form :--

E3051 “ A person, a ~ ~ a h o ~ ~ e d a n , died, leaving a wife, having a deed of marriage

settlement, and an unmarried female, snd a son of his own loins, born of the

t-enter of the said u n r ~ ~ a r r ~ e d f male. In such circu~iis~a~ices, does any portion of

the property left by the said deceased appertain to the said uxtmarried female and

the son of her venter? If i t do appertain to them, to what portion are they entitled?

Sccosding to what book, and to what pnrtion is the wife, having a deed of marriage

settlement, entitled? ”

In return to this interro~atory, the law-officer attached to the Sudder Court,

gave the following reply :-

“ Under the circumstances stated, if it appear, by the acknow~ed~r~ i~ i i t of a

Mahonwdan, that the child, in respect to whom the interrogatory of the Court is put,

i s the o ~ s p r i n ~ of his loins, T mean if that ~ a ? ~ o i i i e d a i ~ h ve said, ‘ This chiId is my

son,’ and afterwards died ; and if that woman of whose venter this SOEA i s horn be s

claimant as to this point, ‘ I am the wife of that ~ a ~ ~ o m e d a n , and this son is mine,

and is his offspring,’ in such cxase this son and this woman will both hecome the heirs

of that Mahomedan, as is clearly stated in the ‘ Hedaya ’ and ‘ S h u r a - i - ~ i k a ~ a ~ in

the chapters on the ‘ Establ ish~ent of Parentage.’ If such be not the facts of the

case, and the signification of the words ‘ an unmarried woman ’ be a woiuan an

aduttcrcss, then, according to thc law, the woman an dulteress arid the ‘son of

adultery’ are neither of them heirs. In the first-mentioned case, f iziean in the

went of this son and this woman being heirs, the whole of the properby of that

deceased ~ a h o m e d a n will, after the liquidat~on of debts, etc., which have a claini

of the first order on the iaheritance, be divided into sixteen shares, and fourteen

shares thereof will appertain to 13061 the son, and one share to the ~ o t ~ i e r of that

son, and one share to the other wife of that ~ ~ a h o i i i e d a ~ ~ , nd God i s the hest judge

of what is right.”

On the 9th of M q 1832, the ~rovinc ia l Court pronounced its final Decree,

whereby? after setting forth a t great length the pleadings in the cause, as well as the

futwas of the ~ a h o n i e d a n law-o~cers, it proceeded to decree as follows :-‘’ From

all the papers and the bearings of the circumstances of the suit, it appears that

Saadat Ali Khan was born in the year 1224, B.S., and that Fyz Ali Khan died in

the year 1231, B.S., and there i s not the least doubt remaining, that during the

period of seven years, Saadat Bli Khan, above named, re~nained with Fyz Ali Khan

and received support; and although the witnesses adduced on behalf of the Plain-

tiff a t this Court in the matter of the marriage of the Plaintiff, and the acknomledg-

inent of Fyz Ali Khan of the parentage of Saadat Ali Khan, have become suspected

and are not confided in by the Court, still adverting to the exhibits of the Plaintiff,

being copies of papers of the Collector’s office, amoIigst which are the deposit,ions

of sundry witnesses, and to other corroborative facts deducible from the papers

of the bundle, confidence may he placed in the fact of Saadat Ali Khan being the

offspring of Fyz Ali Khan, and upon the proof and man~festation of t h i s circum-

stance, that Bai $an is a female who has associated with Fyz Ali Khan, and was

~ a i n t a i n e d with the other females of the family of Fyz Ali Khan by means of a

monthly allowance, and that Saadat* Ali Khan was born of her venter from the

loins of Fys Ali Khan, a futwa was required of the law-o~cer to ascertain this

point : I n the case of a female whose marriage and matrimonial contract with a

person are not proved, upon the proof [307] of eohabitation and associatio~ with

that person, does the son of her venter Imome the heir and proprietor of the pro-

perty left by that person, or not? And from the tenor of the futwas of the law-

officers of the Sudder, it i s quite i ~ a i ~ i f e s t that upon proof of asso~ia t~on with a

female, and the procreation of a son, the son begotten is tlie person entitled to

fourteen shrires, and the woi~~ai i of whose venter that son is born is the heir of oite

share; hence the elnim of Rai $an above named, mlio associated with Fyz Ali Khan

for a lonq time, and was supported with the otlier females, and in wliosc venter

Stiadat Ali Khan was hegotten of the loins of Fpz Ali Khan, and to which effect the

514

9'. RA1 JAW ~ ~ A ~ U ~ ~ [I 8441 111 XCtORE IND. APP., 308

claim of Rai Jan i s advanced, i s in every m y just, and according to lan-, such as

should be decreed.

By the words, ' an unniarried f e ~ ~ a ~ e , ' vhiclt were addressed to the ~ a v " o ~ c e r s ,

w i t h reference to a i Jan above nanied, it was designed as follows :-The ~ a r r ~ a ~ e

and n i ~ t r i ~ ~ ~ o n ~ a l c o ~ t r a c t of Rai Jan with Fp Ali Khan have not, in my opinion,

been proved; coupled with this fact, Saadat A l i Khan ~ i a ~ ~ n g been begotten of the

loins of F y g Ali Khan in the venter of Rai Jan, are he and Rai Jan above named

entitled to the property left bg him or not? It was not intended thereby t o designate

' ail u i ~ ~ ~ i a r r ~ ~ d female, B woman, an a d u l ~ e ~ e s s ~ and it i s obvious that proofs wliich

are d e d u c ~ b ~ e from strong c o r r o ~ r a t ~ ~ r e c ~ s c ~ ~ r n s t a n c ~ s are better etititled to

eoddence than the evidence of witnesse~ ;therefore, in accordar~c~ with the f u t w ,

Rai Jan i s the person entitled to one share, and the said minor i s the person entitled

to ~o~I r t een shares of tfie property left by Fyz Ali Khan, and the ~e€eK~dant is the

person entitled to one share thereof after the ~ ~ q u ~ d a t i o n of debts, etc., and in t h i s

f3081 sui t Rsi Jan, above named, is the claimant for a fourteen ana share of the

p r o ~ e ~ t y left by Fyz ALi Khan, on behalf of her own minor son, and for a share of

one aim on her own behalf, making together a share of fifteen anas of the prope~ty,

real and person& of P;pz hfi Khan : and althoug~i t,he ~ e f e i i ~ a n t is a person havi

a deed of m a ~ r ~ a g e ~ t t ~ e ~ e ~ ~ t , and accord in^ to the fu t~ ,as of the jaw-officers O B

Sudder, the l i ~ u i d ~ t ~ o n of debts is to be first ~ t t e n ~ e d to; and therea€ter what

remain, the share of fourteen anas thereof is the right of Saadat Ali Khan, and ti e

share of one alia is the right of the Plaintiff, and one other aria is the right of

the Defendant, still the deed of marriage sett~ement of the Defendant is not befoie

the Court in thiw case so as to admit of the issue of a final order for the s e ~ ~ a r a t ~ ~ r ~

of what i s entered therein."

e f e ~ ~ d a i ~ ~ B p e a ~ e d from the above Decree, to the Sudder Devartny Adawtut

of Bengal.

Further evidence was entered into on both sides : 01% the part of the Appel~ant,

the s u ~ i ~ ~ a r y Decree under which she obtained possession of the estate, as well as

her aileged dee iage ~ e t t l e ~ e n t , were produced ; the ~ e s p o r i ~ e n t filed sonit!

~oi.responde~~ce he Collector and the Board of Reverme.

The Sudder ~ d a w ~ u t pronounced their final Decree in the cause, on the

3lst ~ ) e c c ~ ~ b e r 11354, tvhich, after stating and c ~ ~ r ~ e ~ i t ~ i i g i ~ ~ n u t ~ I y on all the facts

and c i r ~ 7 ~ n ~ s t ~ n c e s of the case, proceeded as follows : -

*'Upan co~~side i .a t~~i i of all the papers arid e ~ ~ c u ~ s t a n c e s of the case, it is

apparent that, a l ~ ~ o ~ ~ h the Appellant denies the facts of the Respondent being the

wife, and Saadat Ali being the son, of Fyz Ali Khan, the late proprietor of the pro-

perty, and the wi t - [3oQJ~n~ss~ of the Appellant ~ ~ r m her denial, still, from the

depos~t~ons of the witnesses a~luded to in regard to no m a r r ~ a ~ having taken place,

this is c~ear-that they have declared their not having witnessed the rite, but have

not ab~o~~i t e ly asserted that the ~ r e t e n s ~ o n s adduced on the subject are wholly false ;

for instance, from the futwa of Siraj-ood-den Ali Khan, tlie former chief Kazi, and

~ ~ o ~ ~ l a ~ , i e Syud amid-oollah, the nioofti of this Court, in the suit of Mlrxa Jan,

deceased, and uss sum at Rurgaiie and others, A~)pel~ants v, Nirza h e e m Afi and

Hushmut Ali and others, Re~pondents, bearing No. ~ ~ 4 6 ~ ~ h ~ c h on t e 16th of January

1822 was decided by Thomas Goad, Esq., and ~ ~ l l i a m Dorin, Esq., former Judges of

this Court, it appears illat in marriage nd relationsh~p, erideiice with r e f e r e ~ ~ ~ e to

what Iias been heard i s legal and adniis ble. i.e: if a person hear that a man and a

woman assoc~ate together a6 wife and h u s ~ a ~ d in one house, it i s lawful for liim to

gire e ~ r ~ ~ e n c e to the ~ ~ a r ~ i a g e of those two persons, and this descr~ption of evidence

is sufficient to prove the marriage of the woman, and the parentage of the child born

of her, a8 a t t a~ :h in~ to t f ie man ; and it i s ~ a n ~ f e s t and evident from the letters of

the former eo~leetors, dated the 11th and 19th of July 1816, that a t the time of the

3vriting of the letters cited, there were ttvo wives of Fyz AIi Khan, one of whom i7

s h ~ n ~ ~ - o o n - ~ ~ s s a , and of the other wife, allowing that her name is not therein stated,

st,ill it i s w r ~ t t e ~ ' that she i s Iiring in the same house, and with Fyz Ali Xhan, and

for this reason it does not appear expedient that Shums-oon-~issa should reside with

the said Khan: " and Thekoor Das, the guardian of Fyz dli Khan, in his report

dated the 9th of ~ ~ l ~ u n 1229, B.S., in reply to the p e r ~ ~ a ~ ~ a of the Collector, which

[310] issued to ascertain p a r t ~ e u ~ ~ r s connected with the two wives of Fyz Bli

5x5

han, and whether there are such, clearly states, ‘ that Rai Jan Khaziuni is the other

wife of Fy.z Ali Khan, and was so pre:.eviously to the marriage of ~ ~ ~ u n ~ s - o o n ~ ~ i s s a .

and receives a ~ o n t h ~ ~ a~lowance from the ~overnment : and that besides Shuim-

oon-~issa I ~ ~ i a n u n i and Rai Jan ~ h a n u m there is no other, nor has there been an?

other married wife of Pyz hli Khan.’ And froin the reply written by the Appellant

to a perwanna, and which i s put up with the proceedings of the Provincial Court, it

is obv~ous that there i s not, and never even was, any slave wornan of the name of

~ e r a n i t i ~ . And the witnesses of the Ap~el lant state that eram mum was the name of a

woman who had died twenty-five years pre~~ious -to their giving their evidence, which

occurred in the year 1233, Bun& j therefore, if in truth there was a woman named

Heramurn, still from the gear of her demise, which apparently occurred in the pear

1212 or 1213 (1805-6, T), to the time of the writing of the letters dated in the year

1816, answering to the year 1222, B.S., nine or tea years ~ n ~ r v e ~ ~ e d ; hence it is

& ~ ~ a r e n t , that the other xife, residing in the same house with Fyz dli, of whoin

m e ~ t ~ o n i s made in the letters of former co~lectors, i s this very Respo~dent :and the

a~~ega t~on at present made by the A p p e ~ ~ a i ~ t , that the ‘ otlrer wi fe ’ has referenoe to

~ e r a ~ u ~ ~ i s considered to be a d o u ~ n r i ~ h t falsehood, In the same may the letters

of the collectors, and the report of Thekoor Das, guardian, from. which are dedu-

cible a cheerful ~esformance of the relative duties of husband and wife between Rai

J a n ~ h a ~ u m and Fp AIi Khan, the c i rcu~s tance of the said ~ h a n u m beiiig well

known as his wife, are as good as w ~ ~ ~ ~ e s s e s of ~ n ~ u e s t i o n & b ~ e veracity in establish-

ing [311f the marriage of the ~espondent and the parentage of Saadat dli as

~ t t a c h i n g to Fyz Ali Khan; and further, from the d e ~ o s ~ t ~ o n s f the w ~ ~ n e s s ~ ~ filed

at the Co~lectorshi~, and from other e ~ h i b ~ t s of the ~ s p o n d e n t , it a p ~ ~ ? a r s that the

~ e s p o ~ ~ e n t always lived with Fyz hli Khan in the ~ a n n e ~ usual with married

women. For instance, in the year 1223 she canie from Gorai to Nuseerabad, of

~ h i c h place Fyz Ali Xhan was then a resident, and took up her residence, and they

~ssoe ia~ed together as h u s ~ a ~ d and wife ; and in those c ~ r c u n ~ s t a n c ~ ~ she became

~ r e ~ n a ~ t , and in the ~ o n ~ h of Poos 12211, B.S., ~ a a d a t bli was born of tier venter.

And the report of Ram C~~under , the g ~ ~ a r d ~ a n of Fyz Ali Khan, dat,ed the 1 Ith Poos

12211, R.S., on the subject of the ~ s p o n d e n t ’ s residing with Fyz Ali Khan for more

than one year prexrious to the birth of Saadat Ali, affirms the depositions of the wit-

nessex and other exhibits; and from the pet i t~on of the ~espondent~ filed a t the Zillah

Court, and vhicb the ~ p ~ e l l a n t herself does not deny, it appears that the Respon-

dent, at the time Fyz Ali Khan n~a~~i fe s t ed his intention of ~ a r r y ~ n ~ Shunis-oon-

Nissa, gave in a petition of opposit~on d ~ c l a ~ a t o r y of her own c o ~ j u ~ a l a ~ n ~ t y , and

of Fyz Bli Khan’s ~ntention to con~ract another ~ a r r ~ ~ g e without the concurrenc~

of the ~ e s ~ o ~ d e I ~ t , a n t r a ~ y t,o the terms of her marriage s e t t l e ~ e ~ i t ; a ~ t h o ~ ~ g ~ the

petition alluded to was not a~psoved, still no objec~ion nor denial on the part of

Fyz Ali Khan, and RarYizan Beeby, his mother, as to the conjugal affinity of the Re-

spondent, i s apparen~: on the eoatrasy, there is a total silence on the subject on

their part ; and Xeer Saadut Ali, whose d ~ p o s i t i o ~ has been taken a ~ e e a b l ~ to the

order of this Court, has also dearly written in his petitio^, upon which a a E3123

order was passed on the 2nd of April 1825, that S ~ u ~ s - o o n - ~ i s s a han nu^^ and Rai

Jan Khanurn are both w i l w of Fyz Ali Khan. From this it is also manifest that, the

Responder~t, from the c o ~ ~ ~ n i e t ~ c e ~ e n t , claimed conjugal a ~ n i t y with the said Khan,

and was un~~rersally known as being his tPife ; and the present a ~ ~ e ~ a t i o n of Meer

Saadut BE, that Fyz AIi Khan did not marry ~ u s s ~ i ~ a t Rai Kltanmn, and did not

associate with her, appears to be an ~ n ~ u ~ l ~ ~ e d fa~se iood ; indeed, the assertion of

the said witness, of his having heard the story of the ~ e s ~ o n d e n t ’ s r e s ~ d e ~ ~ c e at

Gorai, at the house of Fyz Ali Khan, from us sum at Byeeaa, his ~ ~ a t e r n a 1 unt,

at the age of twelve yeam, and of the residence of the ~ e s p o ~ ~ d e n t a t ~ t i s e e ~ a b a d ,

near the house, the d w ~ ~ ~ ~ ~ i ~ - h o u s e of Fyz AZi Khan, prior and ~ u b s e ~ u e n t to the birth

of Xaadat Ali, and the admission of the witness, of his having protected the Re-

spondent for the period of two years in his own house, are a ~ r ~ a t o r y of the justness

of the claim of the ~ e s ~ o n d e n t , and of the collusion of the witness of the ~ ~ p e ~ I a n t ;

bud ~ e a v i n ~ these ~~rcums ta i~ces out of conside~*atio~~, as the a c k n o ~ ~ e d ~ i ~ ~ ~ ~ ~ t of F p

Ali Khan of the fil~ation of Saadat AIi has been obtained in the manner in xhich the

witnesses of the ~espondent have depoged in this ease, whether there be witnesses

who saw thc p e r f o r i ~ ~ ~ n c e of the ~ a r r ~ a ~ ~ rite or not, that ac~now~ed~ei i ient of his

516

21. RAI JAN K~~~~~~ Cl8441 I11 MOORE XNX). ARP., 319

f u r n ~ ~ ~ ~ e s certain proof of the parentage of Saadat Ati, and necessarily a consequent

proof of the marriage of Mussumat Rai Jan Khanum, his mother, with Fyz Ali Khan,

and these coi~clus~ons are to be deduced from the futwa of the former Chief Kazi, in

the suit No. 15.16, and from the futwa of the present Chief Eazi, which at the requisi-

tion of the Judge of the Provincial Court has been filed in this f3I.31 suit. Con-

sidering all these circu~stances, in my opiriioa the Respondent is the wife of Fyz Ali

Khan, and Saadat Ali i s his son ; and the claim of the Respondent, formerly Pfain-

tiff, brought on her own account, and as guardian on account of Saadat Ali Khan, is

just, and they and Shums-oon-Nissa, Appellant, have the right of obtaining the

estate of Fyz Ali Khan on the ground of heirship, and the division of the property

left by him between all three persons should be made agreeably to the law of in-

heritance. But as from the deed of nrarriags se t t l e~en t filed by the Appel~ant, the

~en~i ineness of which the ~ s p o n d e n t does not deny, it i s apparent that Fgz Ali Khan

coliltracted marriage with MiIUssumat Shurns-oon-Xissa under a deed of marriage

~ e t t l c ~ e n t of Its. 9000 and 500 gold mohurs, and in lieu of the third to be paid in

advance, settled upon her the share of Kisniut Khona Deolee, etc., and that the tmo-

thirds to be paid afterwards have not yet been discharged, and that accord~ng to the

futwa of the ~aw-officers, the liquidation thereof has the priority of succession, there-

of, the separation of the property detaibd in the deed of marriage se~tlement on

account of the third payable in advance, and the l iqu~dat~on of the two-th~rds, the

paynient of which was postponed, from the property left by Fyz Ali Khan, are

necessary; and m y opinion accords in every par t icu~ar with the opinion recorded

by William Braddon, Esq., a Judge of this Court : therefore it is ordered-That the

Decree of the Provincial Court of Juhangee-nagur, dated 9th of May 1832, be

amended and corrected in the following nianner :-“ That the property detailed in

the deed of marriage settlement on account of the one-third payabIe prompt~ly~ be

separated from the mahals in dispute if it be included therein, and whate.ver, ac-

cording to ca~-[3l~]-cu~ation. may be due on account of the two-thirds of the dower

of the ~ppel Ian t , the payment of which was ~ o s t p o n ~ d , be paid from the sum of one

lao and Rs. 41,857. 12 anas, 15 gundas, 2 kowries, the amount profits deposited in

the troasury of t he Col~eetorsh~p; that the share of the zemindary of pei‘gunna

Atiya, etc., the ~ r o ~ e r ~ y left by Fyz Ali, and a ~ o u n ~ profits f o ~ t h c o ~ i n ~ n the

Collector’s treasury, having been divided into sixteen shares, one share be relin-

q ~ i s h e d as the right of the Appe~lant on account of her conjugal affinity, and that

one share of the right of the Respondeiit on account of her conjugal affinity, and

fourteen shares, the right of Saadat Ali Khan, the minor son, being his right as the

son (of the deceased), making together 15 shares, be decreed in favour of the 12.s

spondent, formerly Plaintiff, and that,upon the execution of the Decree of this Court,

the Respondent have possession of a 15 anas portion of the zemindary and talooks,

etc., detailed in the plaint, the property left by Fyz Ali Xhan, and $hat she recover

from the A ~ p e l ~ a ~ t a 15-anas propor t i~n of the amount of profit4 alluded do, and tb3

aniount collections of her share and of the share of Saadat Ali Khan from the period

of the inst~tution of the suit to the date of her o ~ t a i n i n ~ possession as detailed in the

Decree of the ~rovinc ia l Court, and that the costs of both Courts be borne by the

Appellant to the extent of the claim proved, and by the Respondent to the extent not

proved.”

From this Decree, Shums-oon-Nissa K h a n u ~ ~ appealed to his late Majesty in

Council.

After The coi i~mence~~ent of the Appeal, the original Appellant died, and thc

Appeal was revived by her brother, the present A ~ ~ e ~ ~ a n ~ , Kh jah ~ i d a y u t Oollah.

[315] The Appe~lant contended that the Dccree was erroneous for the folloving

reasons : -

I.--Because the Respondent has not proved either that she i s the wife, or that

Saadat hli is the son, of Fyz Ali Khan.

11.-Because, in the absence of proof of the ~espondent’s m a r r ~ a ~ e , her elairns,

and that of her son Saadat Ali, must entirely depend upon evidence of a direct and

valid acknowledg~ent of the latter by Fyz AIi Khan, and because the evidence pro-

duced by the ~espondent for the purpose of prov~ng that acknowled~ment i s wholly

uaworthy of credit, and was in fact discrodited by the Provincial Court, before

which the evidence was taken.

517

I11 MOORE IND. APP., 316 KHAJAH HIDAYUT OOLLAH

111.-Recause Fyz Ali Khan, from his state of imbecility of mind, was incom-

petent to make that acknowledgment of Saadat Ali, as his son, which is required by

the Mahomedan Law in such a case.

The Respondent, on the other hand, submitted that the Decree was just and

proper for the following reasons :-

I.-Because the marriage of the Respondent, Rai Jan Khanum, with Fyz Ali

Khan, was satisfactorily proved, and there was no sufficient evidence to rebut the

legal presumption thence arising, of the legitimacy of her son, Saadat Ali Khan.

11.-Because it was distinctly proved that Saadat Ali Khan was recognized by

Fyz Ali Khan as his son, and such recognition (even without formal proof of a mar-

riage) was sufficient to establish the legitimacy of Saadat Ali Khan, and the rights

of the Respondents, as determined by the Decree of the Court below.

[316] Mr. Charles Buller, Mr. Jackson, and Mr. Forsyth, for the Appellant ; and

Mr. Wigram, Q.C., Mr. E. J. Lloyd, and Mr. Edniund F. Moore, for the Respondent.

The following cases and authorities were cited :-ili!ihr Ali IT. Kureemoonisn Begunz

(2 Ben. Sud. Dew. Reps. 112). Fyz Ali Khalz v. Mussumaut Fatimci Kltatoon (1 Ben.

Sud. Dew. Reps. 357). Mima Qainz Ali Beg v. Mussumaut Bingun ( 3 Ben. Sud.

Dew. Reps. 152). Jeszwoa t S i n g - j e r T-hhy Siing-jee v. Jet Sioa!j-jec C b b y S i n g - j e e

(Ante [3 Moo. Ind. App.], p. 245). Macnaghten’s Principles of the Mahoiiiedan

Law, 23, 90, 93, 297, 299. N. B. E. Baillie’s Mahomedan Law of Inheritance, 31, 49.

The Right Hon. Dr Lushington.-The claim in this case relates to the inlierit-

ance of the zemindary of Atiya; and the claimants of that inheritance, a t least all

the claimants that i t is necessary now to name, are two persons claiming to be tlie

lawful widows of the deceased Zemindar, one of whoni claims also on behalf of her

son, whom she alleges to have been the legitimate issue of the deceased persoii.

Both the Courts, under whose consideration the questions in this cause have been

brought, have come to the conclusion that the claim preferred by Rai Jan on behalf

of herself and of her son, is a just one ; in other words, they consider there has been

sufficient proof to justify them in determining that she was the lawful wife of the

deceased Zemindar, and that her son was the lawful son of that Zeniindar. It is

hardly necessary to say that before their Lordships would reverse the Decree of two

concurrent Courts, they must be perfectly satisfied that some legal miscarriage has

taken [317] place. But their Lordships are of opinion in this case that the evidence

is decidedly in favour of the judgment to which those two Courts originally came.

The question appears to be one depending upon the law, with relation t o Maho-

medan property, and the proofs in support of the case are applied to that law.

Several references have been made to the work of Mr. Macnaghten upon this subject.

I t will not be necessary to read a t length the part of his preliminary remarks to

which reference has been made, and which indeed has been already done ; but the

substance of it appears to be this :-After having stated what is the general opinion

entertained upon the question, he sayii--(‘ The Mahomedan lawyers carry this dis-

inclinatioii (that is against bastardizing) much further ; they consider it the legiti-

mate of reasoning to infer the existence of marriage from the proof of cohabitation.”

He then says-“ None but children who are in the strictest sense of the word spurious

are consiclered incapable of inheriting the estate of their putative father. The

evidence of persons who would, in other cases, be considered incompetent witnesses

is adiiiitted to prove wedlock, and, in short, where by any possibility a marriage may

be presumed, the law will rather do so than bastardize the issue, and whether a mar-

riage be simply voidable or void nh i n i t i o the offspring of it will be deemed legiti-

mate ” (P. ssiii. iv.).

It niay be observed that this is the statement of Mr. Macnaghten, evidently after

great deliberation upon the subject, because he goes on to refer to what has been

said by Sale ; and he then observes--“ This I apprehend, with all due deference, is

carrying the doctrine to a n extent unwarranted by law; for where children are not

born of \%omen proved to be married to their [318] fathers, or of female slaves to

their fathers, some kind of evidence (however slight) is requisite to form a presump-

tion of matrimony” (P. xxiv.) He then observes-“ The mere fact of casdal concu-

binage is not sufficient to establish legitimacy; arid if there be proved to have evisted

any insurmountable obstacle to the marriage of their putative father with their

518

W. RAX JAN ~ ~ A ~ u ~ [I8441 m ORE XND. UP., tis

mother, the children, though not born of c o ~ ~ o n wo~nen, will be ons side red bastards

to all intents and purposes ’’ (P. suiv,) The effect of that app&ars to be, that where a

child has iteen born to a father, of a mother where there has been not a mere casual

concubinage, but a more permanent conaectioii, and vliere there is no iiisurniount-

able obstacle to such a ~ a r r i a g ~ , then, accord~llg to the ~ a ~ i o n i e d a l ~ Eat\-, the

~ ~ r e s u i ~ p t i o n s irr favour of such marriage having taken place.

We apprehend that in considering this question of ~ a ~ ~ o m e d a ~ Law we must, a t

least to a certain extent, be governed by the same principle of evidence which the

Musulrnart lawyers the~iiselves would apply to the coIis~derat~on of such a questiou*.

The first step in the case i s the petition which has been so much commented upon at

the Bar, namely, the petition of Rai San, beaiing date the 11th of ember 1813.

I n that Petition die states herself to be the wife of Fyz Ali Khan, and she sets forth

tile ~ a r r i a g e sett~ement ~ i t h o ~ ~ t indeed ascribi~kg to it any date or giving any date

t o the marriage. Saving so done, she represents that* the Khan was kept away and

not pe~i~3itted to return to liis own house; that there were a nuniber of persons who

had &tewpted to confine Iter, and not, to permit her to go to the Khan j and that he

n as about to marry a ~ ~ o t I ~ e r wife.

Now this document appears to their Lordships to be [319] a document of the t-ery

greatest jii~portance, for without going the lengtt~ of saying that it is a true asser t io~~

of all the facts therein contained, it is at any rate an assertion of facts, in conform~ty

with the su~sequeiit statement of this very person. The statement in this petit8ion is

made in the pear 1813, before there is any anticipation of a litigation of this

description, and it is made by her at a period when Fyz Ali Khan is not considered

o r deemed to be ~ncompe te~~ t ; it is addressed t o a competent Court, and she must,

if she a i i t i c i ~ a ~ ~ d any good result from the p r e s e ~ t a t i o ~ of that petition, have also

anticipated that the facts contained in that petition might be th0 subject of judicial

e ~ a ~ i i ~ a t i o n . She, therefore, offers in the year 1813, to subject her claim (which is in

substance the same as her claim now) to the examination of a competent, Conrt to

decide on it. It appears that this p e t ~ t i ~ n was rejected, and we presume on the

ground that even supposing the whole facts contained in i t to be true, yet that would

be no ju s t i~ca t~on for the i i i te~~erence of the Court, for the purpose of pre~ent ing the

conicinplated n~ai.r~age.

In the year 3.816, Fyz Ali Khan was placed under the protection of the Court of

%‘ards. It is not i ~ ~ e s s a r ~ to go minutely into the question what was the precise

state of h i s mind or of his intellect a t that period. It i s not d~stinctly raised in the

course of the pleadings which were given in by the parties upon this occasion. But

the result of the evidence appears to be, that he was a person who had become niuclt

addicted to habits of intoxication, and that h i e intellects were impaired, though it

does not appear in any part of that evidence, that he had become what may be called

an idiot. However, in 1816, his i ~ r o ~ e r ~ y , and also his person, [320] were placed

under the care of that Court, and pi.oceed~ngs have taken place, which have been

mueh relied on, in both of the Courts below, in ~11s deterinination of the questions

which came under their co~~siderat~oii .

The first docunzent to which it niay be expedient to refer, is the report of Mr.

Pakenhain, the Collector, of the 19th of July 1816. Xr. P ~ k e n h a i ~ , in the d i s c h a r ~ ~

of his duty, in writing a letter to the Court of Wards, proposes to them a settlenient

out of the estate of Fp AXi Khan, and after having ~nentioiied certain c i r cu~s ta i i ce~

relating to the amount of the property, he recommends the sum to be allotted for the

expenses of F y Ali Khan and his family, to be fixed at 200 rupees a ino~it~i, namefp,

120 rupees for Fyz Ali Khan, his two wives, and his mother; 30 rupees for the

servants’ wages; and 50 rupees for the support of a number of females who have

long lived in, and been maintained by, the family, and to whom he states that a sum

equal to witat he proposes has been for soine time pas& allowed. He adds-“ This

last item 1 have not ~ ~ o ~ ~ ~ i e n d e d without carefuliy ascertaining that there are such

persona svho. from having been all along su~~por ted by the Zemindar, may be con-

sidered as wtitlcd to an aElowance.”

A w \ , 5% i t h u t taking this as evidence of the fact, that she was the \%rife of Fyz Ali

Khan, i r i s evidence to this effe&, that so f a r as Mr. Yakenhani’s investigation had ex-

tended, it j ~ i s i i ~ e d hiin in making the rep~eseI~ta t~on which he made, in the d i ~ h a r g 0

of liis duty. TO the Court of St’ards. The Court of Wards acted upon that representa-

519

tion, and Rai Jan continued to receive an a~Ko~ance of 10 rupees a month, from the

year 1817 up to the year 1829, when Fyz Ali Khan died.

@2lJ It appears, further, that during this period, Rai J a n was r e s i d i n ~ at the

house of F p Mi Khan, or, a t least, in that par t of the b u ~ ~ d ~ n g app~opriated to

women belonging to Fyz Ali Khan. All the eyidence, so far as it can be called

evidence, goes to that extent, and, indeed, it appears seax.cely t@ be a point in con-

troversy. Scott, who, it may be observed, is hostile to the

claim of Rai Jan. tally, for the purpose of j u s t ~ f y ~ n g his advice,

that the other wife should not, be permi~t,ed to come illto the h o u ~ ~ ~ o ~ d of F p Ali

Khan ; that this wife i s now residing with him. He says :-‘I Now, as your ward

has one wife living with him, a& far a& 1 am able to Judge, any intercourse with

another wlio has been so long absent, could in no degree add to his doniestio comfort.”

It appears that ~hu ins~oon-~ i s sa , the otber .(vi€@, had been r e s ~ d ~ n g separa te l~ from

her h u s ~ a n d for a considerab~e time, and that she had p r ~ e n t ~ a pe t i t i~n for the

purpose of k i n g allowed to return to him ; and the ground upon whicl~ the Collector

adyises a ~ a i i ~ s t , that ~ ~ e t ~ t i o n bei g con~plied with, is, that this wife, the present

Respoi~dei~t, was r e s ~ d ~ n g with him during that period, and that, therefore, tlie

return of ~ ~ ~ u ~ s - o o n - ~ i s s a ~ ~ o u ~ d be unnecessar~ and ~ n c o n ~ e n ~ e n t . There are

several other documents of the same tenor, Xhich it i s u n i ~ ~ e s s a r y , inthe viea- of their

~ ~ o r d s h ~ ~ s , to follow in detail, namely, the reports of the Collectors.

We a ~ p r e h e ~ ~ d then, that, in point of fact, the case comes clearly and i n d i s ~ u ~ a b ~ y

to t ~ i s - t ~ a t this person, Rai Jan, was ac tua l l~ res id i~g , during a period of sevm

years, in the female d e ~ a r t n ~ e n t of Fyz Ali Khan ; that, a c c o ~ d i n ~ to the s ~ a t e ~ e ~ t s ,

so far as we can make them out, she as so residing far a tmel~emonth [3223 anterior

to the birth o f this child taking place j that while she so resided, she was recognized,

to a cer~a in extent, undo~~b ted l~ , as the wife of Fyz Ali Khan ; that the child was

born under h i s roof, and that that, child c o n t ~ n ~ ~ e d to be ~ a i n t a ~ ~ ~ d in his house

without any steps being taken on the par t of Fyz Ali Khan, or of any one else, to

r e ~ u d ~ a t e Itin title to legitimacy as the o f f s ~ r ~ n ~ of Fyz Ali Khan.

If these facts be so proved, the question i s , whether the ev~dence i s not s u ~ c ~ e ~ ~ ,

to support the ~ e ~ i ~ i n i a c y of the prmenr c l a~n~an t , ~ a a d a t AII. Khan, according to the

law as laid down. In the opinion of the lawofficers who were there c o n ~ u ~ t ~ ~ they

expressed thei~selves to the € o ~ o ~ ~ r i n g effect : --“ Under the above C i r ~ u K ~ ~ ~ t a n ~ e s , i

the event of the proof of these facts, thab ~ u s s ~ ~ m a t Rai Jan associated with Fyz Ali

Khan, and remained with the other females in the house of Fyz Ali Khan, and Saadat

Ali Khan as born of her venter, being the o ~ a p r i n ~ of &e; loins of the said F p Ali

Khan, as i s to be clearly unders~ood from the ~ r o c ~ ~ n ~ of the Appcal Cotist of

J u ~ ~ a n ~ e e - n a ~ ~ ~ r , d ted the 20th of S e p ~ ~ n ~ b e r 1821 ” : they then go on to say that he

would be the lawful child of Fyz Ali Khan, and that lm and the mother would be

entitled to claim their share of the inherit~a~ce.

Noa. aI1 the facts ~ ~ ~ ~ ~ c h are there stated, u ~ o n the ~ r ~ n c ~ p l e of a s s u ~ ~ i ~ ~ t ~ o ~ ~ , appear

to us to 1153 ~ ~ i n t a i n e d by the ddence in this case; n a ~ ~ e l y , that ~ u s s ~ i ~ ~ a t Ra j Jan

did a s s ~ c ~ a t e with Fyz Ali Khan ; that she did reinain with the f ~ m a ~ e s of the house

of Fyz illi Khan ; that Saadat Aii Khan %*as born of her venter ; and, as to his being

the o ~ s p r i ~ ~ of Fyz Ali Khan, we think that i s a e ~ r c u ~ s t a n c e n ~ e s s a r y to be inferred

from the previous facts.

@23] With reference, then, to the law, s laid down by Mr. ~ ~ a c n a g h t ~ n , a d

which appears to be a c k n o ~ l e d ~ e d a t the r to be lam: without going in% the

question of the oral evidence, whether there was an express a c ~ n o w ~ e d ~ n e n ~ of the

child by Fy-t Ali Khan, as the son or not, there seem to be that vhich at least is

t a n t a m o ~ i ~ t to oral evidence of any d ~ l a r a t ~ o n , because there i s a c o n s ~ ~ t ~ y ~ course

of t r e a t ~ ~ r ~ t , both of the mother and of the child, for a period of between seven and

eight years, under circum&anCes, in which it appears to their Lordships to be next to

~ ~ ~ o s s i b ~ e that such a mode of treatment would have been c o r ~ ~ ~ n u e d , except from the

~ 3 ~ e s u ~ ~ ~ ~ o ~ i of the c o ~ ~ a ~ ~ t a ~ ~ ~ ~ ~ , and of the son being the issue of the loins of Fyz

A I i Xlian. But their ~ , o ~ d s ~ ~ i ~ s are not, d ~ s p o ~ e d to think that the whole of the

test~mo~iy, w i t h r e g a r ~ to the verW a c l ~ r ~ o ~ ~ l ~ ~ ~ i ~ e n t of Saadat A’ti Khan, o u ~ ~ ~ t to

be rejected, T t is not ~ecessary, however, to dec~dethe case upon that ground, because

me think, for the reasons X have stated, and without receiving as evidence, that which

is not ~ e ~ ~ t ~ ~ a t e or credible evidence, there are sufficient facts either admitted by

580

There i s the report of

Re states, in

JUVEER-BHAEE 9. VURUJ-BHAEE 1118441 111 MOORE IND. APP., 3!24

both parties, or proved by the treatment and the whole res gestae in the case, to bring

it within the principles of law, which have been already adverted to, and that, there-

fore, the Judgment of the Court below must be affirmed, with costs.

[See Adirujood D o w k k Ahmed Hosseim Khan Bnhadoor v. Hyder Hossein Khan,

1866, 11 Moo. Ind. App. 107, 114; il'euub M d k a Jehan Snhibn v. Mahoniad

C'shkurree h'?ian, 1873, L.R. Ind. App. Sup. Vol. 201 ; Ranee Khujooroonissa

v. Mussaviut Roushuln Jeham, 1876, L.R. 3 Ind. App. 311 ; Abdool Razack v.

Aga Mahomtd Jaffer Bzhdameem, 1893-94, L.R. 21 Ind. App. 56.1

[324] JUVEER-RHAEE and Others,-Appellants; VURUJ-BHAEE and Others,-

Respondents * [August 28, 29, 18441.

On appeal from the Sudder Dewanny Court at Bombay.

This Court will not act as a Court of original jurisdiction.

Where the Judge of the Court below, improperly suppressed documents, which

were not discovered until after the transmission of the Appeal to Her Majesty

in Council, their Lordships refused to give an opinion on the merits, and

remitted the cause to the Sudder Dewanny court, for reconsideration.

This suit was originally instituted in the Zilla Court a t Kaira, by the Respondents

against the Appellants. The Plaintiffs claimed to be a joint undivided family with

the Defendants, and prayed for a partition and distribution of the joint estate.

Evidence of a conflicting character was entered into on both sides, and Mr. Grant,

the then Judge of the Kaira Court, in accordance with the Bombay Regulation IV. of

1527, sec. 24, referred the whole of the evidence to a Punchayet. Mr. Grant was

afterwards removed from the Kaira Court to the Ahmedabad Court, and Mr. Bell

was appointed Judge of the Kaira Court in his stead.

It appeared that, on the 5th of December 1827, the Defendant, Gulla-bhaee Valla-

bhaee, presented a petition to Mr. Bell, objecting to the mode of examination which

Mr. Grant had adopted, on the hearing of this case, and stating that that Judge had

refused to take the depositions of some of the witnesses cited by him, for the purpose

of proving that the property in question 13251 had been acquired by one Bapoo-jee.

The petition also stated, that the persons who had been appointed members of the

Punchayet were friends and relations of the Respondents; that the case was not a

Iroper one to refer to a Punchayet, and that the reference made t o them had been

without the consent of the petitioner. It would appear from the Order made by Mr.

Hell, as endorsed upon the petition, that the Judge reserved the consideration of these

objections until the hearing of the cause.

Therefore,

This petition and order were numbered 312 on the file of the suit.

On the 11th of January 1828, the Punchayet made their report, in which they

declared that the majority of the title-deeds produced by the Respondents were

genuine.

On the 26th of February 1828, the Defendant, Gulla-bhaee, presented another

petition to Mr. Bell, which reiterated the allegations contained in the last-mentioned

petition, and distinctly alleged that the reference to the Punchayet was the conse-

quence of a combination between the Respondents and Sooruj Ram, the Mokhtar of

the heirs of Raga-bhaee and one Luknii Ram, the native agent to Mr. Grant. Mr.

Bell endorsed an Order on this petition, that it should be brought forward a t the

hearing of this cause; it appeared, however, that neither the original petition nor

the Order made upon i t were ever filed with the other proceedings in the cause.

The Defendant, Gulla-bhaee, subsequently presented two other petitions, dated

* Present : Members of the Judicial Committee,-Lord Langdale, Lord Campbell,

Privy Councillors,-Assessors,-Sir E. H. East, Bart., Sir A. Johnston, Knt., arid

~--_____-- - - ~ _ _ _ ~- ~- ___ ~ ~ ~~-~

the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh.

Sir E. Kyan, Knt.

P.C. VII. 621 17,)