ABDUL RAHIMAN Vs. ABDUL HAFIZ

JUDGEMENT

(1.) THIS is an appeal from the decree of the District Judge, Chhindwara. The appellants had brought a suit for possession of three villages in the Chhindwara District on the grounds that those villages belonged to their grandfather Naziruddin, and that they were bequeathed by him to his widow Amirbi and on her death to their father Abdul Karim. The District Judge at first framed the following two preliminary issues:

(2.) THE District Judge found, on the first issue, that. Abdul Karim obtained no-vested interest and that the, plaintiff shad no case, and, on issue 2, that the acknowledgment of a son must be an acknowledgment of paternity. These findings, we think, were really sufficient to dispose of the case, as the appellants' whole-case rested on the alleged fact that their father Abdul Karim was acknowledged as son by Nasiruddin. The District Judge, however, allowed the appellants to file an amended plaint and then framed the following issues:

(3.) THE whole case depends upon whether Abdul Karim can be held to be the son of Nasiruddin or not. The case put forward by the learned counsel for the appellant is somewhat curious and we think that there is a confusion between acknowledgment of paternity and acknowledgment of legitimacy. A great number of authorities were cited in support of' the proposition that according to Mahomedan Law, if a man acknowledged ai-child as his son, that acknowledgment, was valid and sufficient to establish the fact of sonship, provided that the relationship of father and son was not impossible, i.e., the father was at least 12 years older than the son and there existed no insurmountable barrier to a valid marriage between him and the mother of the child. This matter has been very-fully discussed in Zakir Ali v. Mt. Sograbi [1919] 15 N.L.R. 1 and we do not quarrel with the view of law as set forth by the learned counsel for the appellants, but in the present case the question is really one of fact, viz., whether there was any acknowledgment by Nasiruddin that Abdul Karim was his son. It is quite clear that there must be a definite acknowledgment of paternity and that any other acknowledgment is meaningless. Now, in the present case the only direct piece of evidence before us is the will executed by Nasiruddin on 9th April 1888, which is admitted by the parties and has been Sled as Ex. P-1. That will contains the statement of Nasiruddin himself, and the relevant portion is: Mt. Amirbi my wife by marriage aad myself have brought up Abdul Karim and Mt. Mariambi my wife by nika and myself have brought up Abdul Kadar, i.e., we have brought them up both as our own sons from their birth. They both shall be after my death the owners of the property lett by us. That is, Abdul Karim shall be after my death ?nd the death of my wife Amirbi, owner of all moveable and immovable property, i.e., mal-guzari villages cash, etc., left by myself and my wife Ambirbi, and Abdul Kadar shall be, after my death and the death of Mt. Mariambi, my wife by nika, the owner of all the property left by me and my wife by nika.