ABDUL RAZAK Vs. AGA MAHOMED JAFFER BINDANIM

JUDGEMENT

(1.) HADJI Husain, who was a member of a Mahomedan family belonging to the Shia sect and settled in Calcutta, traded as a merchant in Rangoon, made a fortune, and died there, married but without issue, in February 1890. He left a will by which he purported to dispose of all his property. Hadji Husain had an only brother of the full blood, called Abdul Hadi, who died before him in March 1886. He too was engaged in Rangoon for many years, but his career was less prosperous and be returned to Calcutta a poor man some time before his death. The appellant claims to be the lawful son of Abdul Hadi by a Burmese woman, and as such to be the heir or one of the heirs of Hadji Husain and entitled therefore to a share, in so much of his estate as he could not dispose of by will according to Mahomedan law. For the purpose of the present case it is conceded that the appellant's claim is well founded, provided he can make out that he either is or is entitled to be treated as the lawful son of Abdul Hadi. And the only questions on this appeal are these: (1) Has it been established that a valid marriage took place between Abdul Hadi and the appellant's mother, Mah Thai, who was undoubtedly a Buddhist when she met her alleged husband? (2) If proof of legitimacy is wanting, is there sufficient evidence of the legitisation of the appellant by acknowledgment?

(2.) THE learned Recorder found that there was no marriage, holding upon the evidence that Mah Thai was not a convert to Mahomedanism. It would, it seems to me, "he observed." be a more mockery of the Mahomedan religion to say that there was a conversion, when there was not even a semblance of discussion on the subject, when no priest intervened, and when the utmost the alleged convert can say is, that she repeated prayers in a language she did not understand." Taking this view ho thought it unnecessary to consider the evidence as to acknowledgment. No acknowledgment in his opinion could confer the status of legitimacy upon the offspring of a Mahomedan and an unconverted Buddhist.

(3.) THIS criticism seems to be well founded. But the correction does not mend the appellants case. There is nothing in the evidence tending to show that Mah Thai made any profession of the Mahomedan faith before or at the time of the ceremony which is said to have constituted marriage. Mah Thai was a witness for the appellant. She said that she knew nothing about the Mahomedan religion; all her life she lived and worshipped as a Burmese. While cohabiting with Abdul Hadi she worshipped as he did; she repeated his prayers. But she added that she did not understand the meaning of a single word. In re-examination she said that she ceased to be a Buddhist during her cohabitation with Abdul Hadi from the time of her marriage.