Mirza Himmat Bahadur vs Mussamat Shahebzadi Begum and Another

Kemp, J.—The Court of first instance found on the evidence that there was no proof whatever of the marriage of Raja Modenarayan Sing with Barati Begum, the mother of the plaintiff. The Subordinate Judge examined the Rajas of Benares and Bettiah, and it appears also that the Ranis of the late Raja Modenarayan were examined, as also the family priest and other Hindus of high position and respectability; they all deposed to the fact that Raja Modenarayan was a Hindu, and that they, the Raja''s equals in caste, associated with him, and ate with him. It is also clear that, after the death of the Raja, when his estate was claimed by the Ranis, neither the plaintiff, his brother, who was then alive, nor his sister, claimed any right to the inheritance. On this question, therefore, it will be sufficient to say that the whole of the evidence proves that the Raja did not marry this lady; that she was his kept mistress; and that the Subordinate Judge has come to a proper finding on this point. We may here say that this point was not raised in argument by the pleader for the respondent, until after the question of whether the Court would permit the amended issues to stand was given against him; but be that as it may, as the case may go further, we have thought proper to record our opinion that the Subordinate Judge has come to a right finding on the evidence, and that all the probabilities of the case support his view on this point, namely, that no legal marriage took place between the late Raja Modenarayan Sing and Barati Begum. It is very difficult for us to conceive how the plaintiff can come into Court, styling himself to be a Mohammedan, when in his examination before the Subordinate Judge, he deposes that neither he nor his brother have been circumcised; the plaintiff can scarcely be called a Mohammedan not having undergone that ceremony; but as his mother was admittedly a Mohammedan, and as at page 265 of Baillie''s Digest of Mohammedan Law, Part II, which contains the doctrines of the Imamia Code of Jurisprudence, it is stated that, if one of the parents of an infant be a believer, the construction of the law is in favor of the Islam of the infant." We give the plaintiff the benefit of this construction of law, and permit him to carry on his case as the illegitimate son of Barati Begum. Before leaving the question of whether Raja Modenarayan abandoned the Hindu faith and became a Mohammedan, we find that the Subordinate Judge, on the evidence of the Rajas of Benares, Bettiah, and of Dawoo, and of the Ranis and high priests of Ticcari, of the dewans, amlas, and other independent witnesses, found it proved that the Raja was all along a Hindu, and died in that persuasion; that he worshipped idols, visited on pilgrimage places considered sacred by the Hindus, and performed daily pujas; that the birth of his daughter by one of the Ranis was celebrated in the Hindu form. In short, there is nothing to show chat he embraced the Mohammedan faith. The Subordinate Judge having found on the evidence that Raja Modenarayan did not contract a legal marriage with Barati Begum, held that the children of the Raja by the Begum were illegitimate children, who could claim no parentage through their natural father and mother in the eve of the law." The Principal Sadder Ameen, in support of his finding, quotes a passage from the Shara''l Islam, which is translated at page 305 of Baillie''s Mohammedan Law, Part II, and which is to this effect, viz.: That the wahiduzzina or illegitimate child has no nasab or parcentage, consequently neither the zani, or he who has unlawfully begotten, nor she who bore him, nor any of their relations, can be his heir, nor has he any title to their succession." It may be here remarked, as stated by Mr. Baillie, that there is a remarkable difference between the Imamia and Hanitia doctrines and codes on this point; an explanation of this difference is to be found in page 411 of Baillie''s Digest, Part I. The Subordinate Judge having found that the plaintiff was the illegitimate sod of Barati Begum by the Raja, and that there was no nasab between him and the Raja or his mother, proceeds to decide the case upon certain admissions which the Subordinate Judge says he can take judicial notice of, and which in his opinion tend to show that the late Ekbal Bahadur, as well as the plaintiff, have publicly admitted themselves to be brothers, and to have derived their birth from the same parents. The Subordinate Judge refers further to what he considers to be an admission in (para 11) the first written statement put in by the defendants; these admissions, to use the words of the Subordinate Judge, are considered by him to be clear as daylight." The Subordinate Judge proceeds to say ''''that the deceased Ekbal Bahadur had no other heirs left, save his widow and a natural brother and sister; that the wife, in the absence of male issue, under the chapter on distribution of inheritance, is entitled to one-fourth only, and on no account can she obtain beyond four annas; and that the "remainder would descend or ascend to the distant kindred; but in "default of such, he has a right to succeed whom the deceased ancestor acknowledged conditionally or unconditionally as his kinsman;" and in support of this opinion, the Subordinate Judge quotes from Macnaghten, chapter, I, section 55. Referring to this question of admission, the Principal Sudder Ameen proceeds to quote a passage from the Shama''l Islam. The Subordinate Judge candidly admits that these passages were, to use his own words, Greek to him," and he therefore called in the assistance of three Moulvis versed in Mohammedan law. Two of these Moulvis said that they were ignorant of the text quoted, and the third, a Deputy Collector, Moulvi Ali Hossein, who appears to be of the Imamia sect, gave an opinion that brother and sister can succeed, on the strength "of acknowledgment of the deceased, in spite of their illegitimacy of birth." The Subordinate Judge observes of this opinion that it is not satisfactory, inasmuch as no reasons are given for it," but be finds the opinion supported in Macnaghten''s Rule, No. 55; and he further quotes in support of it a Sadder Dewanny decision, dated 28th April 1814, in the case of Mihr Ali v. Kureemmoonnissa Begum 2 Sel. Rep. 112 : 6 I. D. (O. S.) 466.

He, therefore, gives the plaintiff a decree for a portion of his claim, setting aside his claim to the moveable property as not proved, and holding that the property decreed was encumbered by a mokurrari tenure granted by Ekbal Bahadur to his widow; be also found that the dower of the widow was a charge upon the estate for which the estate was liable. On the question of the marriage between Ekbal Bahadur and Shahebzadi Begum, which was contested in the Court below, but was not raised before us in appeal, the Subordinate Judge found that marriage to have been satisfactorily proved; and amongst other reasons for holding the marriage to be proved, the Subordinate Judge gives a very good one, namely, that the lady accompanied Ekbal on a pilgrimage to Mecca, which it is not at all probable, she would have done had she been his kept mistress, and not his lawful wife.

Having disposed of the first question taken before us in appeal as to the amendment of issues in the Court below, we proceed, although the question was not pressed before us in argument, to notice the total absence of any proof of the marriage of Raja Modenarayan with Barati Begum; we also remark that no argument was raised before us, with reference to the question of the marriage of Ekbal Bahadur and Shahebzadi Begum, the principal defendant. The case turns upon the main issue between the parties, namely, whether the late Ekbal and Himmat Bahadur, the plaintiff, being admittedly the illegitimate sons of the late Raja Modenarayan Sing by his kept mistress, Barati Begum, the plaintiff, Himmat Bahadur, can succeed to the estate of his late brother, Ekbal Bahadur, under the Mohammedan law, which governs the parties before us; secondly, whether any such admissions have been made by Ekbal Bahadur during his lifetime, by which the plaintiff is entitled to succeed to the estate of his late brother.

On the first question, which turns upon the Mohammedan law, we would observe that the right of inheritance is founded on nasab or consanguinity; that under the head of nasab are comprehended, first, the parents and the children how low soever; second, the brethren and their children how low soever, and the grandparents, how high soever; and third, the paternal and maternal unless and aunts.

Now, if the right of inheritance founded on nasab existed between the late Ekbal Bahadur and his brother, the plaintiff, Himmat Bahadur, Himmat would come under the second class enumerated above; but Himmat being the child of fornication or adultery, which is the literal meaning of wahiduzzina, be has no nasab or parentage at all; and therefore, under the Mohammedan law, the plaintiff having no right to inherit the estate of his illegitimate brother, the late Ekbal Bahadur, inasmuch as there is no nasab between the two, his claim under that law to succeed to the estate of his brother must fail. The passages 1 from Macnaghten, quoted by the Subordinate Judge, refer to the Suni and not to the Shia sect, and Mihr Ali v. Kurreemmoonnissa 2 Sel. Rep. 113 : 6 I.D. (O.S.) 466 is not in point. We now come to the question of admission; and upon this point there was considerable argument, but the only admission that has been brought to our notice on the part of the respondent, and which is really no admission at all, as far as the estate of Ekbal, or the relationship between Ekbal and Himmat Bahadur is concerned, was a petition in which, after the death of Barati Begum, the two illegitimate sons of that lady, namely, Himmat and Ekbal Bahadur, with their illegitimate sister, consented, as amongst themselves, to take the estate of Barati Begum in the proportions in which she had disposed of it. There is no admission of any right founded on nasab, nor was there any admission that Ekbal was the brother of Himmat, though of unknown parentage. The pleader for the respondent, Moulvi Murhamut Hossein, referred us to the Hedaya, Book XXV, page 137, as explaining the meaning of the word ikrar or acknowledgment. In that page, ikrar, in the language of the law, is said to mean the notification or avowal of the right of another upon one''s self. A case is given at page 170 of the Hedaya, Volume III, to this effect:-- If a person acknowledge an uncle or a brother, such acknowledgment is not credited so far as relates to the establishment of the parentage, because of its operating upon another than the acknowledger. If, therefore, the acknowledger have a known heir, whether near or remote, the whole of the inheritance goes to him, and not to the person in whose "favour the acknowledgment is made, since the parentage or nasab not having been established on the part of the acknowledger, no obstacle can thence arise to the inheritance of a known heir. Now, in this case, it is admitted that Ekbal Bahadur died, leaving a known heiress in the person of his widow, Shahebzadi Begum. It is also clear that the nasab of the party making the acknowledgment, and the party in whose favour the acknowledgment, if any, is made, has not been established in this case; therefore, even admitting any acknowledgment to have been made by Ekbal Bahadur, of which there is no proof on the record, such acknowledgment is not to be credited under the Mohammedan law, when, as in this case, the alleged acknowledger has a known heir.

With reference to the admission alluded to in (para. 11) the first written statement of the defendant, Shahebzadi Begum, we think that the Subordinate Judge has taken an entirely wrong view of the weight of this so-called admission. The whole of that paragraph of her written statement is argumentative; what is stated in that paragraph is this, that if, even for the sake of argument, it be conceded that the estate is to be divided in the manner laid down in the law governing the Shia sect, the widow would then get one share, the plaintiff two shares, and his sister one; and that the plaintiff''s plea as to the division of the estate into three shares is opposed to that law; there is no admission in this paragraph of any nasab between the late Ekbal Bahadur and the present plaintiff, Himmat. The Subordinate Judge is, therefore, clearly wrong in laying any stress on this portion of the written statement as containing an admission of acknowledgment on the part of Ekbal Bahadur that Himmat, the plaintiff, was his brother. On the whole case we are of opinion, first, that the issues were properly amended, and that the substantial points intended by the parties to be tried, and which were necessary for the proper determination of the case, have been tried; secondly, that the lower Court has come to a proper finding, both on the question of no marriage between Raja Modenarayan Sing and Barati Begum, and of the legality of the marriage between Ekbal Bahadur and Shahebzadi Begum; and, thirdly, that his decision on the Mohammedan law, with reference to the admission or acknowledgment by Ekbal, that the plaintiff, Himmat Bahadur, was his brother, and that consequently Himmat was entitled to succeed under the Mohammedan law to a share in the estate of Ekbal, is wrong in law.

We reverse the decision of the Subordinate Judge, dismiss the plaintiff''s suit, and decree this appeal with costs payable by the plaintiff. The cross-appeal of the plaintiff, respondent, is dismissed with costs. With reference to the costs of Bismollah Begum, the defendant No. 2, we think it was unnecessary to make her a defendant in this suit. There is no proof whatever that she was colluding with the substantial defendant Sahebzadi Begum. On the contrary, all the probabilities of the case and her own action in the case, in so far as her intentions have been disclosed in her written statement, abundantly show that she herself intends to question the right of Sahebzadi Begum to succeed to the estate of her husband--an intention which we do not know whether she has abandoned or not. As she has been made a respondent in this Court, notwithstanding that she was absolved from all responsibility in the Court below, and got her costs from the Subordinate Judge, we think that this was an unnecessary proceeding on the part of the appellant, and that, therefore, the respondent, Bismollah Begum is entitled to her actual costs of appearance in this Court, and which, considering that her pleader has not had to open his mouth except to ask for his costs, we fix at the reasonable sum of 50 rupees.2

1 He has a right to succeed whom the deceased ancestor acknowledged, conditionally or unconditionally, as his kinsman; and provided the acknowledgment was never retracted, and provided it cannot be established that the person in whose favour the acknowledgment was made belongs to a different family."--Macnaghten, Chapter I, section 55.

2 The portion in rectangular brackets forms a portion of the Judgment though not reported in 4 B.L.R., Ed.