(MOHAMMAD) SHAFIQ ULLAH KHAN Vs. NUHULLAH KHAN

JUDGEMENT

(1.) This appeal comes before this Bench on account of a difference of opinion between two learned Judges of this Court who heard the appeal in the first instance from the Court of a Subordinate Judge. The two learned Judges having differed, this appeal was filed under Section 10 of the Letters Patent.

(2.) The only point for determination in this appeal is whether the defendants- respondents are the legitimate sons of one Enayat Ullah Khan. In the Court of the Subordinate Judge there were a few other points of difference between the parties, but those points do not any longer arise. Enayat Ullah Khan died on 30-4- 1916, and left him surviving several brothers, a son, the plaintiff-appellant, and the defendants who claim to be the step-brothers of the plaintiff. The plaintiff's case, as made in the plaint, was that the defendants were the children of one Mt. Durga Dhobin, the wife of one Cheta and it was doubtful whether their father was Enayat Ullah. As the case proceeded, the position taken up by the plaintiff was that possibly Enayat Ullah Khan was the father of the first two of the defendants, but he was surely not the father of the 3 defendant, Halimullah Khan. His witnesses stated in Court that Mt. Durga took up her residence permanently with Enayat Ullah Khan some 30 years prior to their deposition. In the arguments, however, before us, it has bean practically conceded that Enayat Ullah Khan was the father of not only all the three defendants, but also of their two elder brothers Asad Ullah Khan and Ruh Ullah Khan, who are dead, and who died before Enayat Ullah Khan. The plaintiff had a full brother Rafiq Ullah Khan, who also predeceased his father Enayat Ullah.

(3.) The plaintiff, claiming to be the sole heir of his father, declared in the plaint that the defendants who were holding three-fourths of Enayat Ullah Khan's property were not entitled to the same, being illegitimate children of that gentleman. The defence as explained by the application dated 22nd December 1922 (printed at page 6 of the record) was that the defendants were the children of one Mahmuda Begam, a lady of Sherwani Pathan clan, to which Enayat Ullah admittedly belonged, and that Mahmuda Begam was the lawfully wedded wife of Enayat Ullah. The defendants case as developed in the course of the evidence was that their grandfather (mother's father) was a Sherwani Pathan, that he came from the village of Shahjahanpur which was not far from the village of Enayati to which Enayat Ullah belonged and settled in the latter village. The defendants were unable to state if any relations of their alleged maternal grandfather, Mansur Khan, were alive.