SYED SADAKUT HOSSEIN Vs. SYED MAHOMED YUSOOF

JUDGEMENT

(1.) IN this case some questions of importance have been raised, and their Lordships regret that they have not had the assistance of counsel appearing for the Respondent. Their Lordships are therefore impressed with the propriety of not going beyond questions which are absolutely necessary for the purpose of their decision.

(2.) THE real issue in this case, and the only issue upon which their Lordships feel it is necessary to decide, is whether Selim,--who was beyond question the actual son of Amir Hossein by a woman; known as Domni,--had been so recognised by Amir Hossein as to give him the status of a son capable of inheriting. The suit relates to the property of Amir Hossein. He died in the year 1866: and if Selim is in the position of having the rights of a sou in reference to heirship, the Plaintiff in the case, who claims as the assignee of his interest, is entitled to succeed. A question of importance was raised by the counsel for the Appellant. He contended that Selim could not be treated as having acquired the status of a son capable of inheriting, because he alleged that the intercourse between Amir Hossein and Domni was an adulterous intercourse, as she had been previously married to a person then and still living, and that consequently, whether her connection with Amir Hossein was preceded by a marriage ceremony with Mm or not, yet still the intercourse was adulterous, and that according to Mahomedan law, the issue of that adulterous intercourse could not inherit as heir or acquire the status of a son. by recognition. It, therefore, becomes necessary to consider in the first instance whether the alleged marriage of Domni to a man named Jummun has been established by satisfactory proof. Jummun appears to have been a person of somewhat the same degree in life as Domni, whose father's name was also Jummun. This marriage, if it took place at all, would have occurred shortly before or somewhere about the same period as the alleged marriage between Amir Hossein and Domni. The alleged marriage of hmmun with Domni is said to have been somewhere about 1852 or 1853, and the alleged marriage of Domni with Amir Hossein must have taken place about the same period. Amir Hossein died in 1866, leaving Selim his son then about eight or nine years of age, which would have made him born in 1857 or 1858. Another child had been born of the intercourse between Amir Hossein and Domni about four years before; so that the marriage between Amir Hossein and Domni, if it ever took place, is referred to about the same period as the alleged marriage between hmmun and Domni.

(3.) SEVERAL witnesses are called to prove the marriage; and their evidence is examined with critical accuracy by the Judge of the Court below. It is necessary for their Lordships now to come to a determination upon it; and their Lordships are of opinion that in dealing with that evidence the criticisms pronounced by the learned Judge of the Court below AVIIO tried the case, and who saw the witnesses, are well founded, and that there is no reliable evidence, in confirmation of that extraordinary story which Jummun tells, upon which their Lordships can now say that this marriage with Jummun ever took place; and on the contrary, they have come to the conclusion that it did not take place.