Mt. Bibi Fatma and Others vs Abdul Karim and Others

Dawson-Miller, C.J.—The only question in this case is one of fact, namely, whether the defendant Abdul Karim is the legitimate son of Chaudhuri Abdul Razzak and his wife Mt. Mahtab. The Subordinate Judge determined the question in the affirmative and the somewhat lengthy argument addressed to us on appeal has failed to convince me that the learned Judge was not justified in arriving at that conclusion. The documentary evidence produced on behalf of the defendants shows that on repeated occasions Abdul Razzak during his lifetime acknowledged the defendant Abdul Karim as his son in documents conveying property to the latter. The plaintiff in his plaint challenged these documents on the ground that the defendant gained so much influence over Abdul Razzak that he coerced him into making the acknowledgments. A different case, however, was sought to be made by the evidence at the trial. It was suggested that some sort of adoption took place and that Abdul Razzak, in order to create evidence which might be used after his death, acknowledged the defendant as his son. There is, however, no proof of any adoption or that these documents were executed in order to create evidence. It is a suggestion merely and is not supported by any proof. As most of the witnesses were speaking about events which took place some 70 years earlier the evidence is for the most part of a vague and unconvincing character. It is clear, however, from the evidence of most of the plaintiff''s witnesses who are old enough to speak of events within their knowledge that the man Chitnu, son of Buddhu, who is sought to be identified with Abdul Karim, the defendant, must have been born several years after Abdul Karim whose age is established with reasonable certainty, not only by his own evidence but by that of the principal plaintiff herself as being at least 70 years at the time when the evidence was given in 1924. The man Chitnu, according to most of the defendant''s witnesses, must have been born several years later and could not be the same person. Evidence of this class is certainly not, in my opinion, sufficient to rebut the strong presumption which arises under Mahomedan law in favour of paternity by the proved acknowledgment of Abdul Razzak that Abdul Karim was his son.

I have had an opportunity of perusing the judgment about to be delivered by my learned brother who has considered the evidence at length and I agree with the conclusions at which he arrives and would dismiss this appeal with costs.

Mullick, J.

This case turns upon a simple question of fact, namely, whether Chaudhury Abdul Razzak of Jamalabad and Muzaffarpur married as his second wife Mt. Mahtab and had by that wife a son Abdul Karim, defendant 1 in this case.

Abdul Razzak was a man of considerable property and was born about 1820 and died on 2nd December 1910. The genealogical tree attached to the plaint shows that Abdul Razzak left a sister named Bibi Sogra whose daughter is plaintiff 1, Mt. Bibi Fatma alias Kaniz Fatma. Fatma married, one Abdul Latif who was descended from Chaudhury Daud Ali, the brother of Abdul Razzak''s father Reayasat Ali. Chaudnury Abdul Wahid, plaintiff 2, Chaudhury Abdul Gafoor, plaintiff 3, Chaudhury Muhammad Nasir, plaintiff 4, Mt. Najmunnissa, plaintiff 5, are the sons and daughter of Mt. Fatma by Abdul Latif. Bibi Sharifan, defendant 2, Bibi Nasiran, defendant 3, Chaudhury Muhammad Siddiq, defendant 4, Chaudhury Wasi Ahmad, defendant 5, Chaudhury Vakil Ahmad, defendant 6, Bibi Mosifan, defendant 7, and Bibi Alikan, defendant 8, belong to Daud Ali''s branch.

There are differences between the genealogy put forward by the plaintiffs and that put forward by the defendants. The plaintiffs'' genealogy does not show Mt. Rabeya and Abdul Hakim as the daughter and son respectively of Daud Ali. It also omits the name of Abdus Shakur who, according to the defendants, was the son of Abdul Latif and left a daughter named Fahmida. According to the plaintiff''s, this Abdus Shakur died before his father and left no child.

If the genealogy of the plaintiffs is true then the plaintiffs are entitled to a share of 8-annas 17-kauries 3-krants and 1 dant share in the properties in the suit.

But the differences which are material to this case are these: The plaintiffs say that Abdul Razzak had one wife, namely, Birajan alias Raj Bibi, and that he had no children by her. The defendants say that Abdul Razzak had three wives, Mt. Raj Bibi, Mt. Mahtab and Mt. Saliman, and that by Mt. Mahtab he had a son named Abdul Karim the defendant 1, and that Abdul Karim had only one wife, namely, Mt. Kamizunnissa. The plaintiffs say that Mt. Mahtab was not the wife of Abdul Razzak; also that Abdul Karim had two wives, namely, Mt. Sohoni, by whom he had a daughter named Budhia, and Mt. Kamizunissa by whom he had two daughters and two sons.

Plaintiff 6 is a purchaser pendente lite of a half-share in the property in suit from the other plaintiffs and was added as a party on 25th September 1923.

It is the case of the plaintiffs that some of the defendants are parties whose interest as the heirs of Abdul Razzak has become barred by limitation by the adverse possession of defendant 1.

The period of limitation for lodging the suit was twelve years from the date of Abdul Razzak''s death and an issue was raised as to the exact date of Abdul Razzak''s death. The Subordinate Judge has found that as Abdul Razzak died after midnight the date must be reckoned as 2nd December 1910 and that the suit which was filed on 2nd December 1922 is just in time.

The learned Subordinate Judge also finds that Abdul Razzak was a keen business man and looked after the management of his affairs till the end. He had dealings with Mr. Richardson, the manager of the Bhikhanpur Indigo Concern, and on 24th November 1910 he left with Mr. Richardson a document purporting to be a will executed by him on 24th November 1910 in which he describes the defendant Abdul, Karim as his lawful and legal heir. That document was kept by Mr. Richardson and handed over by him to Abdul Karim on 24th September 1914. No probate was taken of it as Abdul Karim entered into possession of Abdul Razzak''s properties without any opposition. In my opinion the evidence fully supports these findings.

Between 1876 and 1883 Abdul Razzak executed a number of documents transferring property to Abdul Karim. Some were gifts outright and others were deeds of sale of which the consideration was remitted. The plaint attacks these documents either as forgeries or as having been obtained by Abdul Karim by undue influence and coercion.

It is alleged by the plaintiffs that Abdul Karim is the son of one Budhu Jolaha who came from a village called Kumraon which was the home of Abdul Razzak''s first wife Mt. Raj Bibi alias Birajan. Budhu Jolaha was a Mahomedan and it is alleged that he got entangled with a Hindu woman named Sundari, a Tamolin by caste, and had by her a child named Chitnu or Chhitnu, or Chitun or Chatua, who afterwards came to be known under the name of Abdul Karim. The plaintiffs do not state when and how this new name was given but they hint that there was something in the nature of an adoption on the part of Abdul Razzak about 1876 after which the child was held forth by Abdul Razzak as his son Abdul Karim by his wife Mahtab. The plaintiffs further allege that Raj Bibi brought Budhu and Sundari and this child with her to the house of Abdul Razzak at Jamalabad when the child was very young, his exact age being a matter of controversy in, this suit. It is alleged that the child first of all be came a goat herd in the service of Abdul Razzak; then he became a saki or cupbearer to Abdul Razzak who is alleged to have been a hard drinker. Indeed one of the cases made in the plaint is that he was so drunk always that the documents in favour of Abdul Karim were executed without a proper knowledge of their contents. Some time after his arrival at Jamalabad Budhu is said to have become the driver of Abdul Razzak''s elephant, as to the time of purchase of which also there is some uncertainty. Next it is alleged that Chhitnu became a charkatta in Abdul Bazzak''s service, his duties being to cut fodder for the elephant. It is alleged that by the year 1876 Chhitnu had acquired such an influence over Abdul Razzak that Abdul Razzak was determined that he should inherit his properties and that from that time he under Chhitnu''s influence began to give out that Chhitnu was his son by his second wife Mahtab and that his name was Abdul Karim.

Upon the allegations of undue influence, fraud and coercion, two issues were framed, namely issues 9 and 10. Issue 9 runs as follows:

(9) Whether the charges of profligacy, drunkenness, opium eating and other bad habits of Chaudhury Sheikh Abdul Razzak as alleged by the plaintiffs are true.

(10) Whether the deeds attacked in paras. 12, 15 and 16 of the plaint were executed by Chaudhury Abdul Razzak? If they were so executed, were they executed by him under misrepresentation and undue influence? Are they forged?

The Subordinate Judge has unhesitatingly answered both issues in favour of defendant 1 but it appears that during the arguments before the Subordinate Judge an attempt was made to put forward a somewhat new case, It was suggested that, even if it were admitted that the transfers in favour of Abdul Karim were genuine, Abdul Razzak executed the deeds with the intention of making it falsely appear that Abdul Karim was his son. It was urged that there must have been something like an adoption in or about 1876 from which date Chhitnu began to be described as Abdul Karim and to be styled the "now Chaudhury", that is to say, a new member of the Chaudhury family. The Subordinate Judge''s answer to this new case was that Abdul Karim, though known as Chhitnu, was not the son of Budhu Jolaha, that he was the son of Abdul Razzak by his lawful wife Mt. Mahtab, who, though of low family was lawfully married to him, and that the plaintiffs, therefore, were not entitled to inherit any of the properties of Abdul Razzak upon the death of Bibi Sogra.

Before discussing the evidence in the case, it is necessary to observe that the English law with regard to evidence on matters of pedigree differs in some respects from the Indian law which is contained in Section 32, Clauses (5) and (6) and in Section 50, Evidence Act. Only such evidence in this case will be admissible which consists of (1) statements by a deceased person regarding relationship who had special means of knowledge when the statements were made before the question in dispute was raised; and (2) like statements in a will or deed relating to the affairs of the family when made before the question in dispute was raised.

Section 50 provides that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.

Now a mass of oral evidence has been called on either side to prove who was the father of defendant 1. The Subordinate Judge, after a very careful examination of the evidence of the 20 witnesses called on behalf of the plaintiffs, has no hesitation in finding that the story of the plaintiffs with regard to the parentage of Abdul Karim has not been established. He has accordingly dismissed the suit and the plaintiffs now appeal.

Apart from the general rule that a plaintiff must prove his own case, the Mahomedan law throws a special onus upon the plaintiffs in this case. It enacts that if a man has acknowledged another as his legitimate child the presumption of paternity arising therefrom can only be rebutted: (a) by disclaimer on the part of the person acknowledged; or (b) such proximity of age as would render the alleged relationship physically impossible; or (c) proof that the acknowledge is in fact the child of some other person.

It has been abundantly proved that the acknowledgment in this case was not in any way casual. It was deliberate and made in formal and solemn manner in registered deeds. There can be no doubt that Abdul Razzak by his conduct fully intended to give out to the world that Abdul Karim was his legitimate son. In these circumstances the learned Subordinate Judge was right in holding that the plaintiffs must fail if they cannot prove by their own evidence that Abdul Karim was not the son of Abdul Razzak but was the son of Budhu.

It has to be borne in mind that the witnesses are deposing to facts which occurred about 70 years ago. It is not possible to expect accurate evidence with regard to dates after this lapse of time and the difficulty has been aggravated in this case by the conduct of the plaintiffs themselves who brought the present suit on the last date when the period of 12 years'' limitation expired. Indeed the defendants raised the plea of limitation and the plaintiffs only just succeeded in avoiding it by showing that Abdul Razzak died not before but after midnight and therefore limitation counted not from 1st December, but from 2nd December 1910.

But notwithstanding the difficulty created by lapse of time there are certain broad facts from which valuable inferences may be drawn.

It is established that Abdul Razzak''s first wife was Mt. Raj Bibi alias Birajan whose home was at Kumraon and that she died about 1907 (see the evidence of Ozirul Hussain, plaintiffs'' witness 17).

I consider it also established that Abdul Razzak married as his second wife Mt. Mahtab. According to the evidence of Eradut Hussain, for many years Abdul Razzak''s legal adviser, this lady died about 1875. The learned Subordinate Judge has disbelieved the evidence of the two witnesses called by the defendants to prove that Mahtab was the daughter of Jital Jamadar. I do not think it is necessary to disturb this finding; but there can be no doubt that his finding that Mahtab was the second wife of Abdul Razzak is correct. I also agree that the evidence establishes that Abdul Razzak married a third wife named Saliman in 1908 whom he divorced after about six months. He had no children by any wife except Mahtab. Another established fact is that Abdul Karim was 70 at the time of the suit and that he was born about 1854. It is the case for the plaintiffs that he married as his first wife Mt. Sohoni and the evidence of Matukdhari Lal (plaintiffs'' witness 19) purports to show that Sohoni was alive at the time of Abdul Karim''s second marriage in 1881 to Mt. Kamizan, the daughter of Mogal Jan of mauza Katia, by whom he has had several children. According to the evidence of Ozirul Hussain (P.W. 17) she must have died before 1892. (After considering oral and documentary evidence, his Lordship came to the following conclusions). Abdul Karim was born about 1854. For a number of years he was employed on menial work, that would appear from the evidence of Shamlal Sahu (D.W. 29), aged 82, who says that he used to see Abdul Karim chopping wood at Abdul Razzak''s house. In 1876 some question must have been raised regarding his parentage and Abdul Razzak took vigorous steps to settle the matter by executing documents in his favour in which he in unequivocal terms held out to the world that Abdul Karim was his son by his wife Mt. Mahtab. Abdul Razzak executed these documents in his full senses without coercion and undue influence and the documents are valid and operative. Abdul Razzak had three wives, namely, Mt. Raj Bibi alias Birajan, Mt. Mahtab and Mt. Saliman, and Abdul Karim was the son of Mt. Mahtab. Abdul Karim by reason of the fact that Mt. Mahtab was of low family, was regarded as of lower social scale by many members of the family. He was not allowed by some to eat in the beradri or the family circle. But this exclusion was not of long duration, for we find that he performed the funeral ceremonies of Abdul Razzak after his death.

On the other hand, the plaintiffs have failed to prove the case which they set out to prove, namely that Abdul Karim was the son of one Budhu who came from Kumraon to Jamalabad with his wife Sundari some time before 1861. They have shown that Abdul Razzak had an elephant for some time which was driven by an elephant driver named Budhu, and that he also had a khitmatgar of the same name, and that one of these two Budhus had a son named Chitnu or Chitan or Chhatua. I think the evidence of the defendants shows that Abdul Karim was known as Chetun or Chitun, but the plaintiffs have not shown that he was the Chitan or Chitnu or Chhatua who was the son of Budhu. The allegation that Abdul Karim was at first a chilum-bearer to Abdul Razzak and then a charkatta, and that he afterwards became the personal attendant of Abdul Razzak and gained complete domination over him, has not been made out. I think the plaintiffs have succeeded in showing that Abdul Karim married twice but they have not succeeded in showing that the first wife''s name was Sohoni or that he had a daughter by her named Budhia. But the question whether he had one wife or two is not of much importance in this case.

The result therefore is that, agreeing with the learned Subordinate Judge, I find that the plaintiffs have failed to discharge the burden that rested on them and that the suit has been rightly dismissed. I also hold that defendant 1 has proved the affirmative case that he is the legitimate son of Abdal Razzak. The appeal is therefore dismissed with costs.