ISMAIL AHMED PEEPADI Vs. MOMIN BIBI

JUDGEMENT

(1.) The appellant Ismail Ahmed Peepadi (herein called "the plaintiff") was born on 1 May 1919. On 12th November 1936 - when he was seventeen years old-the suit out of which this appeal arises was brought on his behalf in the District Court of Amherst in Burma. Abdul Gaffoor, his mother's elder brother, acted as next friend, and on 8 December 1936, leave was obtained to sue in forma pauperis. The purpose of the suit was to establish that the plaintiff was the legitimate son and only child of one Haji Ahmed Peepadi, an inhabitant of Moulmein, who had died there on 8 August 1935, leaving one widow Momin Bibi, defendant 1 and that under the law applicable to Sunni Mahomedans the plaintiff was entitled to a fourteen annas share in the deceased's estate. This claim had been first made, so far as appears, by a lawyer's letter dated 18 February 1936. The estate of the deceased consisted in part of a one-fourth share in the estate of his father who had died on or about 12 January 1935. The defendants to the suit, in addition to the widow, were the deceased's brother Cassim, his step-brother Hashim, and two step-sisters. They all joined in one written statement dated 21 December 1936. The case made by the plaint was that Ahmad Peepadi, the deceased, had married the plaintiff's mother Mariam Bibi on or about 20 October 1916, and that though he had in the end dissolved this marriage by giving her talak this divorce had not taken place until after the appellant's birth. Save that the date of the divorce was alleged to be "sometime after the birth of the plaintiff" no date was assigned to it by the plaint, but the evidence called for the appellant is to the effect that he was over a year old at the time. It is proved and admitted that on 3 July 1921, at Rangoon Mariam Bibi married again, her second husband being called Ismail. The date of her death is not stated in any of the pleadings, but is put by a witness Maung Ba (D.w.11) and by the learned District Judge as about 1925. The case made by the pleading and witnesses of the defendants is that though Ahmed Peepadi's marriage to Mariam Bibi had taken place on 20 October, 1916, as alleged by the plaint, it was dissolved on 10 November 1916 - within a month - by a talaknama being served upon her on her husband's behalf.

(2.) The single issue framed by the trial Court was: Is the plaintiff the lawful issue of Haji Ahmed Peepadi ? Over a score of witnesses were called on each side. After the learned District Judge Mr. A.T. Rajan, who began the trial, had in March 1937, heard twenty-two of the witnesses for the plaintiff he was succeeded by another learned Judge Mr. Ba Hla Thein, who from June to September 1937, heard two more witnesses for the plaintiff, the plaintiff's own evidence and the oral evidence for the defendants. Judgment was given by Mr. Ba Hla Thein on 27 October 1937, in favour of the plaintiff, finding him to be the lawful issue of Ahmed Peepadi deceased, and a preliminary decree for administration of the deceased's estate upon that footing was drawn up. This, by some error which is unexplained, directed the defendants to pay to the plaintiff two lakhs of rupees, but its terms need not now be scrutinized. On appeal by the defendants to the High Court at Rangoon, the decision of the trial Court was reversed by Goodman Roberts C. J., and Dunkley J., who held that the plaintiff had failed to prove that he was the lawful son of Ahmed Peepadi. From their decree of 6 April 1938, dismissing the suit the plaintiff has appealed to His Majesty in Council.

(3.) The matter which requires to be determined is the date of the divorce whereby the marriage of Ahmed Peepadi to Mariam Bibi was dissolved. Though the talaknama was presumably dated it has not been produced by either side and their Lordships are unable to draw an adverse inference against either party on that account. The marriage of 20 October 1916 is not disputed nor is it disputed that Mariam Bibi gave birth to the plaintiff on 1 May 1919. If the divorce took place after the plaintiff's birth, S.112, Evidence Act, would conclude the present case in his favour since no case is made of the husband and wife having had no access to each other. A question has been raised whether S. 112 applies only to cases in which the continuance of the marriage is established positively or directly, or whether it can be brought into effect by proof of the marriage and by the consequent presumption that the relationship continued. There is in India at least one authority in favour of the latter view, 7 Bom LR 95.1 But as their Lordships have not found it necessary to call upon counsel for the respondents and as the decision of the appeal does not in their view depend upon any question as to the burden of proof, they do not propose to discuss any general questions of this character. The presumption of continuance is dealt with by the Evidence Act in S.114 (cf. Illus. (d) thereto). Under S.4 it was open to the Court in India upon proof of the marriage of 20 October 1916, either to regard as proved the subsistence of the marriage in May 1919, unless and until it should be disproved, or else to call for proof of it, using the discretion entrusted to the Court by cl.1 of S. 4 of the Act in a judicial manner according to the circumstances of the case. The right of the appellant cannot under the Act, be put higher, and their Lordships will not assume that the continuance of the marriage requires for the purposes of S. 112 to be shown in any special manner.