Sadakat Hossein vs Mahomed Yusuf

Fitzgerald, J. 1. In this case some questions of importance have been raised, and their Lordships regret that they have not had the assistance of counsel appearing for the respondent. Their Lordships are, therefore, impressed with the propriety of not going beyond questions which are absolutely necessary for the purpose of their decision. 2. The real issue in this case, and the only issue upon which their Lordships feel it necessary to decide, is whether Selim,--who was beyond question the actual son of Amir Hossein by a woman known as Domni,--had been so recognized by Amir Hossein as to give him the status of a son capable of inheriting. The suit relates to the property of Amir Hossein. He died in the year 1866; and if Selim is in the position of having the rights of a son in reference to heirship, the plaintiff'' in the case, who claims as the assignee of his interest, is entitled to succeed. A question of importance was raised by the counsel for the appellant. He contended that Selim could not be treated as having acquired the status of a son capable of inheriting, because he alleged that the intercourse between Amir Hossein and Domni was an adulterous intercourse, as she had been previously married to a person then and still living, and that, consequently, whether her connection with Amir Hossein was preceded by a marriage ceremony with him or not, yet still the intercourse was adulterous, and that, according to Mahomedan law, the issue of that adulterous intercourse could not inherit as heir or acquire the status of a son by recognition. It, therefore, becomes necessary to consider, in the first instance, whether the alleged marriage of Domni to a man named Jummun has been established by satisfactory proof. Jummun appears to have been a person of somewhat the same degree in life as Domni, whose father''s name was also Jummun. This marriage, if it took place at all, would have occurred shortly before or somewhat about the same period as the alleged marriage between Amir Hossein and Domni. The alleged marriage of Jummun with Domni is said to have been somewhere about 1852 or 1853, and the alleged marriage of Domni with Amir Hossein must have taken place about the same period. Amir Hossein died in 1866, leaving Selim, his son, then about eight or nine years of age, which would have made him born in 1857 or 1858. Another child had been born of the intercourse between Amir Hossein and Domni about four years before; so that the marriage between Amir Hossein and Domni, if it ever took place, is referred to about the same period as the alleged marriage between Jummun and Domni. 3. Now the account given by Jummun is certainly one of an incredible character. The statement is that he became acquainted with Domni when he went to live in this particular village. His Lordship then examined the evidence as to the alleged marriage between Jummun and Domni and concluded as follows: 4. Their Lordships have then come to the conclusion that the parties fail to establish this marriage between Jummun and Donini. That relieves them from offering any opinion upon the very important question of law which was raised by the counsel for the appellant, namely, whether, if there had been this marriage, the offspring of an adulterous intercourse could be legitimated by any acknowledgment. The absence of reliable proof, such as their Lordships could act upon, of the marriage of Domni and Jummun, appears to their Lordships to relieve the case from further difficulty. They do not intend in the least to depart from the statement of the law upon an appeal to the Privy Council in the case of Mahomed Azmat Ali Khan v. Mussumat Lalli Begum L.R. 9 I.A. 8 : I.L.R. 8 Cal. 422 which is as follows: ''Their Lordships are relieved from a discussion of those authorities, inasmuch as the rule of Mahomedan law has not been disputed at the bar, viz., that the acknowledgment and recognition of children by a Mahomedan as his sons gives them the status of sons capable of inheriting as legitimate sons, unless certain conditions exist, which do not occur in this case.'' Their Lordships do not intend at all to depart from that rule, or to throw any doubt upon it. The Judge of the Primary Court who saw and who heard the witnesses, and the Judges of the Supreme Court who examined into the evidence afterwards, concur in opinion that there was sufficient evidence of the acknowledgment by Amir Hossein of Selim as his son, from which an inference is fairly to be deduced that the father intended to recognize him and give him the status of a son capable of inheriting. Upon that point both the Courts come to one conclusion, and that conclusion their Lordships adopt. They think that the status of Selim as son has been sufficiently established by recognition so as to enable him to claim as heir. Other questions have been raised in the case; but, in accordance with what has been stated as their Lordships'' view, they think they ought not in a case of this kind to go beyond what is necessary for the decision. 5. Their Lordships will, therefore, humbly advise Her Majesty to dismiss the appeal, and to affirm the decision of the Court below. 6. There will, of course, be no costs in this case.