MOOSA ADAM PATEL Vs. ISMAIL MOOSA

JUDGEMENT

(1.) THIS suit has been brought by the plaintiff as one of the heirs of the deceased Aishabai to have her half share in the house in dispute distributed amongst her heirs. It has been resisted by defendants i, 2 and 3 as donees from Aishabai under a hiba-bil-evaz, dated the 11th of October 1898. The defence was originally two-fold. The defendant No.2 contended, in his written statement, that he and his children, the defendants 1 and 3, had acquired a complete title to the property in suit against Aishabai by adverse possession, or, in the alternative, that Aishabai had given to them by the deed of gift in the form of hiba-bil-evaz all her rights, title and interest in the property in October 1898, and that the said gift was legal and binding and effected a valid transfer of the ownership under the Mahomedan law. On the face of it, these two defences are rather contradictory than alternative. For it is clear that if, as the defendant 2 alleged in his written statement and has reiterated in his oral evidence before this Court, he had had adverse possession of the property for more than twelve years, Aishabai would have had no right, title or interest which she could make the subject of gift to him in 1898. Or assuming that he means no more than that his adverse possession had commenced to run some years before 1898, and had not then ripened into legal ownership, still the implication would be that Aishabai was not in possession of the property, and therefore would not have been in a position to comply with one of the essential requirements of the Mahomedan law of gift. Similarly, if he relied upon a gift by Aishabai in 1898, it is as clear that he could not establish any title against Aishabai's heirs by adverse possession. And as soon as I had heard the written statement read, it seemed to me that this was really a case in which it would be necessary to put the defendant to his election. He might rely upon one defence or the other. But upon the general principle of aligen contraria non est audiendes, he can hardly be allowed to rely upon both. Or assuming that as a mere matter of pleading he might have relied upon both, it is pretty clear that by endeavouring to press both these defences at one and the same time upon the Court, he would virtually put an end to all chances of succeeding in his defence. But as soon as the case opened, the learned counsel representing the defendants anticipated any such observations by framing issues which contained no allusion whatever to the defence by adverse possession, and, on his attention being drawn to this, stated that his client intended for the purposes of this suit to rely upon the gift and the gift alone.

(2.) NOW the case has really broken up into two parts. The first ground of defendant No.2's defence was that the plaintiff was not entitled to maintain this suit. And he based that contention upon the allegation that the plaintiff was not the legitimate son of his putative father Adam and mother Aishabai, but an illegitimate son of Aishabai born to Adam out of wedlock. Considering the character of the suit and the fact that among the other defendants there are undoubted heirs of the deceased Aishabai, who would have been entitled to have precisely the same issue tried and determined between them and the defendant No.2, this preliminary line of defence was, in my opinion, ill-advised. The position of the defendant No.2 and his children defendants Nos. i and 3 in relation to the plaintiff and other defendants in this suit is simply this. The plaintiff and the other defendants represent the heirs of Aishabai and the defendants i, 2 and 3 are holding the property against the heirs of the estate. It could, therefore, have made no difference to all that is substantially in issue between these three defendants and the other parties to the suit, whether the carriage of the suit had been entrusted to the plaintiff or to defendant No.4. But the preliminary objection taken to the plaintiff's right to maintain this suit was referable to, as indeed very soon frankly acknowledged, what always seems to be a preponderant factor in litigation-a factor to which more importance is often given than to the actual rights of the contesting parties themselves in the subject-matter of the suits, I mean costs. The defendants' justification for adopting the line he did was that, whereas he had reason to believe that the defendant No.4 who might have been entrusted with the carriage of the suit, as an admitted heir of Aishabai, was a man of sufficient substance to pay his costs, should he prove successful in resisting this claim, the plaintiff was not. In order, therefore, to have the carriage of the suit placed in the hands of a man who would be in a position to pay costs, the defendant No.2 did not hesitate to raise this defence casting a serious slur upon the birth and social position of the plaintiff. And in doing so, he must have been aware that that kind of accusation is one which all Courts habitually view with disfavour. It is a charge which, if recklessly made without any reasonable ground of being able to substantiate it, is almost sure, upon its breaking down, to set the Court in some measure against the party who has preferred it. But I cannot help thinking that it is a little deplorable that the eagerness of the parties to be guaranteed all their costs should have hurried the defendants in this case into raising reckless and scandalous issues of this kind, reflecting for the first time, as far as I can see, after fifty years, upon the birth, parentage, and legitimacy, of the plaintiff.

(3.) NOW were the system of keeping marriage registers amongst the Mussulman community nearly half a century ago perfect or anything like perfect and exhaustive, this would certainly have been a very reasonable ground upon which to raise an inference that no marriage between Aishabai and Adam had actually taken place and an attempt, no doubt, would have been made had the matters been pressed further to show that while this particular certificate of marriage was not forthcoming, there were certificates of contemporary marriages not only in the same caste but in the same family. However that may be, looking to the class of people to whom the plaintiff belongs, I should hesitate very long, I came to the conclusion upon no other ground than the want of a marriage certificate in the year 1860 in the Kazi's books, that there necessarily had been no marriage between the putative father and mother of the plaintiff. There is perhaps no subject upon which the Courts lean more strongly in favour of one view and against another until convinced by the most conclusive evidence than the subject of legitimacy and lawful marriage. Wherever it is shown upon the facts to be possible that a man and woman who claim to have been married may have been married, the Courts would always lean strongly in favour of the conclusion that a marriage has taken place. Wherever, upon the facts shown, it is possible that a child has been born in a lawful wedlock and is therefore legitimate, the Court would always lean most strongly in favour of his legitimacy until the contrary is most clearly and irrefutably proved.