USMANMIYA ABDULLAMIYA Vs. VALLI MAHOMED HUSAINBHAI

JUDGEMENT

(1.) The suit out of which this appeal arises was brought by one Sardarbibi as the widow of Husseinbhai Abdulabhai to recover possession of her one-fourth share of the deceased s property. Husseinbhai died in June 1904. He left no issue, but he left a widow, the present plaintiff, and two brothers, the 1st and 2nd defendants. The 1st and 2nd defendants did not dispute the claim of the plaintiff, but the 3rd defendant resisted the plaintiff s suit and claimed to be the acknowledged son of the deceased Husseinbhai. Both the lower Courts have acceded to the 3rd defendant s contention, and the present appeal is brought, not by the plaintiff, but by the 1st and 2nd defendants, who are represented before us by Mr. Rao.

(2.) The learned pleader for the appellants has taken two points in his clients interests. The first of those points is that a Mahomedan cannot legally acknowledge as his son a person who is shown to be the son of another man. It appears to me that this legal proposition is well grounded, and among the numerous authorities which may be cited in its favour we may mention Hamilton s Hedaya at page 439, Sir Barnes Peacock s judgment in Mussamut Jaibun v. Mussamut Bibee Nujeeboonissa (1869) 12 W.R. 497 and the elaborate judgments in Muhammad Allahdad Khan v. Muhammad Ismail Khan (1888) 10 All. 289.

(3.) But the question is, whether in the present case the 3rd defendant is shown not to have been the son of Husseinbhai. That is a question of fact and the decision of it rests with the lower Courts. Mr. Rao, however, urges that one of the necessary facts is the recital to be found in the deed of gift by Husseinbhai to the 3rd defendant, Ex. 142, in which occurs this passage: "The reason why these fields are given to you in gift is that your parents died leaving you only about twenty days old." It is, therefore, urged that we have no option but to infer that whosoever may have been the father of the 3rd defendant, that father could not have been the donor, Husseinbhai. We think the answer to this contention is that the admission which we have set out is only one fact among many other facts upon which the lower Courts had to determine the question whether the 3rd defendant was shown not to be the son of Husseinbhai. It cannot be said that the learned Judges below have omitted to consider the admission in the deed of gift, nor can it, we think, be said that by reason of that admission they were bound to come to the conclusion in the appellants favour. What they have done is, we think, what they were bound to do. They have considered this admission as one piece of evidence, but on a general examination of all the evidence bearing upon this point, they have found that the 3rd defendant is not shown to have been the son of any person other than Husseinbhai. That conclusion of fact being perfectly open to the Judges below on the evidence is not, in our opinion, subject now to review in Second Appeal. And since that is the conclusion of fact, the position in law seems to us to be precisely that which, according to Mr. Justice Mahmood in Muhammad Allahdad Khan v. Muhammad Ismail Khan (1888) 10 All. 289 invites the application of the Mahomedan doctrine of ikrar or acknowledgment; for, the learned Judge says at page 335 of the Report: "The doctrine relates only to cases where either the fact of the marriage itself or the exact time of its occurrence with reference to the legitimacy of the acknowledged child is not proved in the sense of the law as distinguished from disproved." So here, as we understand the judgments, both Courts hold that the probability is that defendant 3 is the son of Husseinbhai by a union of doubtful validity.