SHOHARAT SINGH Vs. MUSAMMAT JAFRI BIBI

JUDGEMENT

(1.) The questions which arise for decision on this appeal are substantially questions of fact only. Was Muhammad Kazim ever married to Achchhi Bibi, and if so, when, and were there any children of the marriage ? There is no doubt that Muhammad Kazim left three daughters by Achchhi Bibi him surviving, of whom the plaintiff was the youngest, and that those three daughters, if legitimate, were entitled to succeed to his property as co-heirs. But the defendants to the action (the now appellants) allege that they were illegitimate, or alternatively that if the plaintiff was legitimate, so also were her sisters, so that the plaintiff was entitled to succeed to one-third only of her father s property, The plaintiff (the now respondent) alleges on the other hand that although her father and mother lived together as man and wife for many years they were married about 1 1/2 years before she was born and not earlier, that she therefore was his only legitimate child.

(2.) The plaintiff tendered in proof of the marriage of her parents a deed said to have been executed by Muhammad Kazim on the 11th April 1884, a translation of which will be found at page 90 of the record, and also the depositions of several witnesses who deposed to the marriage ceremony having taken place in their presence about the same date. The Subordinate Judge was of opinion that the deed was a forgery, and that these witnesses were not telling the truth. The High Court having before it additional evidence of considerable importance came to a contrary conclusion, holding that the deed was genuine and that the marriage ceremony had been performed as deposed to by the witnesses. The present appeal is from this decision of the High Court.

(3.) The deed in question is a deed of dower. In it Muhammad Kazim, who was a Mohammedan of the Shia sect, declared that Achchhi Bibi had been living with him for some years past, and that he had contracted muta with her in the beginning; that owing to their mutual love and affection he had long intended performing nikah with her, but owing to certain circumstances, as well as to the unwillingness of some members of his family, he could not do so; that a suit was recently instituted on his behalf in which his deposition was taken; that in this deposition he had not considered it advisable to admit his muta with Achchhi Bibi; that she came to know of this, and by reason of it a disagreement took place between them; that as he had made up his mind before this to perform nikah with her, and as it was also necessary to remove the disagreement between them, he had of his own free will and accord performed nikah with Achchhi bibi at a dower of Rs. 50,000, at a general meeting at which raises and respectable residents of the city were present; hence he had executed that deed as a memorandum of the dower and nikah that it might be of use in time of need.