P L D 1962 (W (PLP)

MASUD AHMAD, J.‑The following pedigree‑table, which has been taken from the judgment of the trial Court and which shows the relationship between the parties, will be helpful in understanding the precise nature of the dispute between them. BHAGA | Haveli=Mst. Taleh Bibi | (Defendant 1.) ______________________________|_________________________________ | | | | Khuda Bakhah Allah Bakhsh Mst. Kaki= Mst. Mehr Bibi | Din Mohd. (Plaintiff 7 ) Mst. Naziran Bibi | (Defendant 2.) | _____________________________________________|___________________ | | | | | | Abdul Muhammad Abdul Mst. Said Mst. Sharif Mst. Ghani Sharif Aziz Begum Bibi Rashida Bibi (Plaintiffs Nos. 1 to 6)

2. The land in dispute, which is about 216 kanals in area and is situate in Chak No. 129/R. B., Tehsil and District Lyallpur, was acquired by one Bhaga, from the Government under the Colonization of Government Lands Act, between the years 1911 and 1916. After the death of Bhaga, this land devolved on his son, Haveli, on whose death his two sons, Khuda Bakhsh and Allah Bakhsh, got the land, by inheritance, in equal shares. Khuda Bakhsh died after some time and his share devolved on Allah Bakhsh. Allah Bakhsh died in the year 1936, leaving his mother, Mst. Taleh Bibi, and a daughter. Mst. Naziran Bibi as his heirs. At that time Mst. Naziran Bibi, was about four years old and at the request of Mst. Taleh Bibi, as recorded in the mutation order (Exh. P. 2), the mutation of the whole of this land was sanctioned in favour of Mst. Naziran Bibi. Mst. Taleh Bibi, however, continued to manage this land on behalf of her grand‑daughter, Mst. Naziran Bibi, who, it appears, continued to live with her. Sometime afterwards (the exact date being not known) Mst. Taleh Bibi gave this land, on lease, to Din Muhammad, father of the present appellant.

3. In the year 1953, the appellants filed a suit in the Court of the Senior Civil Judge, Lyallpur, to seek a declaration that they were owners of the land in dispute, as Mst. Taleh Bibi who was entitled to it on the death of Allah Bakhsh, had relinquished her claim in their favour. They alleged that Mst. Naziran Bibi had filed a suit for the recovery of rent against them and, therefore, they were compelled to file a suit for establishing their title. Their main ground of attack was that Mst. Naziran Bibi was born within six months of the date of marriage of her mother, Mst. Aishan Bibi, with Allah Bakhsh and therefore, she was not the legitimate daughter of the latter. According to them, under the customary law applicable to the parties, on the death of Allah Bakhsh, the whole of this land should have been inherited by Mst. Taleh Bibi, but she had given her consent to the mutation of this land in favour of Mst. Naziran Bibi. Mst. Taleh Bibi, who was one of the defendants in the case, admitted the appellants' claim and stated that she had never given her consent to the mutation of this land in favour of Mst. Naziran Bibi.

4. The suit was contested by Mst. Naziran Bibi, who claimed that she was the legitimate daughter of Allah Bakhsh and was, therefore, entitled to the land in dispute. She stated further that she had been in possession of the land in dispute for more than twelve years and, therefore, even if she was not entitled to the land in dispute, she had become owner of it by reason of adverse possession. She raised certain preliminary objections. After disposing of these preliminary objections, the trial Court framed the following issues (1) Is not Mst. Naziran Bibi the legitimate daughter of Allah Bakhsh ? (2) Are the plaintiffs estopped by their words and conduct from suing ? (3) Is the suit within limitation ? (4) Has Mst. Naziran Bibi acquired adverse title in the land in suit by prescription ? (5) In case issue No. 1 is found in favour of the plaintiffs, was Mst. Taleh Bibi the heir of Allah Bakhsh on his death ? (6) Did Mst. Taleh Bibi transfer her rights in this land in favour of Mst. Naziran Bibi either expressly or by conduct and what is its effect ? (7) Has Mst. Taleh Bibi transferred her rights in the land: suit in favour of the plaintiffs ? (8) Relief ?

5. On the first issue the finding of the Court was that as Mst. Naziran Bibi was born within six months of the marriage of her mother, Mst. Aishan Bibi, with Allah Bakhsh, in accordance with the provisions of section 112 of the Evidence Act, she was to be presumed to be the legitimate daughter of Allah Bakhsh. On issue No. 2 the finding was that the appellants were estopped from denying the title of Mst. Naziran Bibi. Issues No. 3 and 4, regarding limitation, were also found against the appellants and so were the remaining three issues. As a result of these findings, the appellants' suit was dismissed, on the 3rd of November 1955. The present appeal has been filed to challenge the decree and judgment of the trial Court dismissing the appellants' suit.

6. Mst. Naziran Bibi, the sole contesting defendant in the trial Court, who is one of the two respondents in this appeal, did not appear in this Court in spite of service of notice, and, therefore, the appeal was heard ex parte against her.

7. So far as the facts relating to the birth of Mst. Naziran Bibi and the marriage of her mother with Allah Bakhsh are concerned, there seems to be no dispute because, according to the copy of the birth entry, Exh. P. 3, which has been printed at page 26 of the paper-book, Mst. Naziran BIN was born on the 3rd of February 1933 and, according to the copy of an entry taken from the marriage register (Exh. P. 1), which has been printed at page 18 of the paper-book, Allah Bakhsh married Mst. Aishan Bibi on the 13th of August 1932. It is, therefore, clear that Mst. Naziran Bibi was born within six months of the date of her mother's marriage with Allah Bakhsh. There being no evidence on the record to show that Allah Bakhsh could have no access to Mst. Aishan Bibi, at the time when Mst. Naziran Bibi could have been begotten, the trial Court was justified in holding that Mst. Naziran Bibi was the legitimate daughter of Allah Bakhsh provided section 112 of the Evidence Act was applicable to this case. On the other hand, if that provision of law did not apply to the present case and the matter had to be decided with reference to rules of Muhammadan Law, Mst. Naziran Bibi could not be considered to be the legitimate daughter of Allah Bakhsh. Before dealing with the somewhat difficult question of the applicability of section 112 of the Evidence Act to a case of this kind, it is necessary to dispose of the findings of the trial Court on the remaining issues.

8. At the time of Allah Bakhsh's death, which took place in the year 1936, besides his mother, Mst. Taleh Bibi, and his daughter, Mst. Naziran Bibi, he had two other relatives, namely Mst. Kaki, mother of the appellant, and Mst. Mehr Bibi, both sisters of the deceased. In the presence of the mother and daughter, the sisters, under the customary law applicable to the parties, could not claim any share in the property of the deceased, and, hence, had no locus stands to object to the mutation made in favour of Mst. Naziran Bibi. From the evidence on the record it appears that after mutation in favour of Mst. Naziran Bibi had been sanctioned in the year 1937, she remained in possession of this property although during her minority, her grandmother, Mst. Taleh Bibi, managed it on her behalf. If Mst. Naziran Bibi is held to be the legitimate daughter of Allah Bakhsh in her presence Mst. Taleh Bibi could not claim any share in the property of the deceased, but if she is not the legitimate daughter of Allah Bakhsh, Mst. Taleh Bibi was entitled to the whole of this land, and as she had relinquished her rights in favour of Mst. Naziran Bibi and as Mst. Naziran Bibi continued to occupy it for more than twelve years, she became full owner by reason oft adverse possession. The findings of the trial Court on the issues regarding limitation, that Is, issues Nos. 3 and 4 are, therefore correct, namely, that the suit was barred by time and also that Mst. Naziran Bibi had acquired title to the land by reason of adverse possession for more than twelve years.

9. Mst. Taleh Bibi being still alive, the appellant, as sons and daughters of one of the two sisters of Allah Bakhsh, had no right to claim any share in this property, unless it be that Mst. Taleh Bibi had a subsisting interest in the property which she transferred in their favour. If Mst. Taleh Bibi did not have any such interest, the question of transfer of the same could not be arise. Mst. Taleh Bibi having voluntarily agreed to have mutation of the whole of this land sanctioned in favour of Mst. Naziran Bibi, she is estopped, by her words and conduct, from suing, and the appellants, who claim through Mst. Taleh Bibi, are not in a better position to dispute the title of Mst. Naziran Bibi. The finding of the trial Court on issue No. 2, namely, that the appellants are estopped from suing, is, therefore, correct. Issue No. 5 would arise only if Mst. Naziran Bibi is not held to be the legitimate daughter of Allah Bakhsh. If the finding on the first issue is in favour of the appellants, Mst. Taleh Bibi, as mother of the last male-owner, would be considered as his heir, but If Mst. Naziran Bibi is held to be the legitimate daughter of Allah Bakhsh, during her life time, Mst. Taleh Bibi cannot be considered to be an heir of the deceased. The finding of the trial Court on issue No. 5 is, therefore, correct.

10. So far as issue No. 6 is concerned, although in the written statement Mst. Taleh Bibi had denied that she was a consenting party to the mutation in favour of Mst. Naziran Bibi, a reference to the mutation order, Exh. P. 2, would show that mutation was sanctioned Mst. Naziran Bibi's favour, at the request of Mst. Taleh Bibi. Even the appellants in Paragraph 3 of the plaint admitted that Mst. Taleh Bibi had given her consent to the sanction of mutation in favour of Mst. Naziran Bibi. The trial Court was, therefore, justified in deciding this issue in favour of Mst. Naziran Bibi.

11. The only point that remains to be decided is, whether it had been established that Mst. Naziran Bibi is the legitimate daughter of Allah Bakhsh. The decision of this question would depend mainly, if not wholly, on the determination of the question as to whether the provisions of section 112 of the Evidence Act are applicable to this case, or whether, for deciding the question of legitimacy of Mst. Naziran Bibi, the provisions of Muhammadan Law, on this subject, only would be applicable.

12. Section 112 of the Evidence Act, on which reliance was placed by the trial Court for giving a finding in favour of Mst. Naziran Bibi, as being the legitimate daughter of Allah Bakhsh, reads as follows :- "The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eight days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

13. The rule of Muhammadan Law, relied upon by the appellants, to show that Mst. Naziran Bibi is not the legitimate daughter of Allah Bakhsh, is stated in Ameer Ali's Muhammadan L aw, at pages 190 to 193 of the Fifth Edition, in the following words "According to the Sunni Schools, the presumption of legitimacy is so strong, that in cases where a child is born six months from the date of marriage and within two years after dissolution of the marital contract, either by the death of the husband or by divorce, a simple denial of paternity on the part of the 1usband would not take away the status of legitimacy from the child. "According to the Sunni Schools, therefore, where a child is born to a woman within the period indicated, viz., six months or more from the date of marriage, and within ten months after dissolution of marital contract either by the death of the husband or divorce such child is affiliated, without an express acknowledgment on the part of the father. Nor will a simple denial of paternity by the husband take away the status of legitimacy from the child. "If a man committed fornication with a woman and she became pregnant and he then married her, after which she gave birth to a child, if the child was torn at six months or more from the date of marriage, its nasab would be established in the father, i.e., it would be regarded as the legitimate offspring of the woman's husband; but if it was born within less than six months no ascription would take place unless the man acknowledged it to be his issue, but did not say it was his by fornication. "In other words, it is the right of the man to legitimate a child born within the time by acknowledging expressly or impliedly that the conception took place in wedlock."

14. According to Ameer Ali (page 201) section 112 of the Evidence Act embodies the English rule of law, and cannot be held to vary or supersede, by implication, the rules of Muhammadan Law. This rule of Muhammadan Law was accepted by their Lordships of the Privy Council in Ashrufooddowla's case ((1866) 11 Moo. I A 94‑113) and it was held that the presumption of legitimacy from marriage follows the bed and is not ante‑dated by relation. Wilson in his Anglo‑Muhammadan Law (Fifth Edition, page 161) comparing section 112 of the Evidence Act with the rule of Muhammadan Law, on the question of legitimacy, says as follows: ‑ "The rule of the Indian Evidence Act, section 112, that legitimacy is conclusively presumed from birth during the continuance of a valid marriage or within 280 days after its termination, unless it be shown that the married parties had no access to each other at any time when the alleged child could have been begotten, is really, notwithstanding its place in the statute book, a rule of substantive marriage law rather than of evidence, and, as such, has no application to Muhammadans, so far as it conflicts with the Muhammadan rule that a child born within six months after the marriage of its parents is not legitimate."

15. The learned counsel for the appellants also relied on the observations of Mr. Justice Mahmood in Muhammad Allahdad Khan and another v. Muhammad Ismail Khan and others (I L R 10 All. 289), in which after discussing the relevant facts of the case, the learned Judge observed as follows, at page 339: ‑ "Such being my view of the facts of the case, it is not necessary to enter into any elaborate discussion as to how far the provisions of section 112 of the Indian Evidence Act (I of 1872), as to birth during wedlock being conclusive proof of legitimacy, would affect a case such as this. That section of course proceeds upon adopting the period of birth, as distinguished from conception, as the turning point of legitimacy. It is a peculiarity of the English law that it does not connect itself with the conception, but considers a child legitimate who is born of parents married before the time of his birth, though they were unmarried when he was begotten. "That peculiarity of the English law has no doubt been imported into India by section 112 of the Indian Evidence Act, and it may some day be a question of great difficulty to determine how far the provisions of that section are to be taken as trenching upon the Muhammadan law of marriage, parentage, legitimacy, and inheritance, which departments of law, under other statutory provisions, are to be adopted as the rule of decision by the Courts in British India. Fortunately the difficulty does not arise in this case owing to the date of the marriage of Ghulam Ghaus with Mod Begum with reference to the birth of Allahdad being uncertain, and I need not therefore refer to the difficulty any further than by saying that there is enough authority in the texts of the Muhammadan law to show that, under that system of jurisprudence, questions of legitimacy are referred to the date of the conception of the child and not to the period of his birth."

16. In Mazhar Ali and others v. Budh Singh and another (I L R 7 All. 297) the same learned Judge, dealing with another rule of Muhammadan Law, regarding missing persons held that that rule was of evidence and applied to Muhammadans also. The following observations made at page 310 of the reported judgment, in which a distinction has been drawn between Muhammadan rules of substantive law and rules of evidence are very significant. "Now, reading these texts carefully, there can, I think, be no doubt, firstly, that the rule of the Muhammadan Law as to missing persons has arisen from a maxim relating to the subject of evidence, and the rule of istis‑ha6, which is the outcome of that maxim, cannot be regarded as a rule of succession, inheritance, or marriage, secondly, that among the great doctors of the Muhammadan law itself there is a great difference of opinion as to the exact manner in which the rule of istis‑hub is to be applied to missing persons; thirdly, that as to the period necessary to elapse before the presumption of death can be applied to missing persons, Muhammadan jurists themselves are far from being unanimous; fourthly, whilst some of the greatest doctors of the law would leave the fixation of period to the discretion of the Judge in each individual case, others consider the preferable course to be that the matter should be determined by the Imam, that is, by the ruling authority, as distinguished from the Kazi or the Judge presiding in a judicial tribunal. These conclusions are amply borne out by the texts which I have quoted, and they convince me that the rule of Muhammadan law as to missing persons is a rule belonging purely to the domain of legal presumptions falling under the bead of the law of evidence; and, I may say, with due deference, that in my opinion the reported cases which have been cited and which tend to support a contrary opinion are not based upon a sound view of the Muhammadan Law. It is true that, in some of the most celebrated treatises of that law, the rule has been discussed as if it were a part of the law of inheritance and succession; but, on the other hand, the Hedaya itself and some other equally authoritative treatises have dealt with the subject in a perfectly separate chapter, obviously because the authors regarded it as too general to be classed under any particular head, applying, as it does, to all the branches of law in which the death of a missing person may happen to be the subject of investigation I think that in administering a medieval system of law it is supremely important that the Courts of justice in British India should draw a clear distinction between the rules of substantive law and those which belong purely to the province of procedure, because, whilst under section 24 of the Civil Courts Act the Courts are bound to administer the former branch of the law according to native laws in cases of succession, inheritance, and marriage, . . . . The rule as to missing persons appears to my mind to be purely a rule of evidential presumption, and though before the passing of the Evidence Act there might have been perhaps some justification for the Courts to apply the rule to cases of Muhammadan succession, inheritance, and marriage, the provisions of cl. (1), section 2 of the Evidence Act leave no doubt in my mind that we are now bound, in connection with all questions of evidence, to administer the rules contained in that Act, and it follows that the present case is governed by section 108 of the statute." It may, at this stage, be pointed out that when both these decisions were given, section 2 of the Evidence Act was on the statute‑book. This section reads as follows: ‑ "On and from that day (1st September 1872) the following laws shall be repealed :‑ (1) all rules of evidence not contained in any Statute, Act or Regulation in force in any part of British India ; (2) all such rules, laws and regulations as have acquired the force of law under the 25th section of the Indian Councils Act, 1861, in so far as they relate to any matter herein provided for; and (3) the enactments mentioned in the schedule hereto, to the extent specified in the third column of the said schedule ; But nothing herein contained shall be deemed to affect any provision of any Statute, Act or Regulation in force in any part of British India and not hereby expressly repealed." This section was repealed by the Repealing Act, 1938, the preamble of which is In the following words:‑ "Whereas it is expedient that the enactments specified in the schedule which are spent or have otherwise become unnecessary or have ceased to be in force otherwise than by expressed specific repeal, should be expressly and specifically repealed ; It is hereby enacted as follows." It may also be added that the enactments specified in the Schedule to the Repealing Act, 1938, appear to have been repealed because of the insertion of section 6‑A in the General Clauses Act by the General Clauses (Amendment) Act, 1936, as according to the newly added section of this Act, in spite of the repeal of a Repealing Act, the amendments made by it continue to remain in operation. It is how section 6‑A of the Act reads:‑ "Where any Central Act or Regulation made after the com mencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the con tinuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal." According to the late Chief Justice of Pakistan Mr. Justice Muhammad Munir, (Monir's Principles and Digest of the Law of Evidence, Fourth Edition, pages 8 and 9), section 2 of the Evidence Act was repealed because its provisions were spent and had become unnecessary. The question as to whether by repeal of section 2 of the Evidence Act, the rules of evidence, not contained in any Statute, Act or Regulation, as for instance, rules of Muhammadan Law, had been revived or not, would be discussed at its proper place.

17. The rule of Muhammadan Law regarding legitimacy, which was accepted by their Lordships of the Privy Council in Ashrufooddowla's case and by the Full Bench of the Allahabad High Court in Muhammad Allahdad Khan's case, is stated by Baillie in his "Digest of Muhammadan Law" (pages 392 and 393) in the following words: ‑ "The shortest period of gestation in the human species is six months. And if a man should marry a woman, and she is delivered of a child within six months from the day of marriage, the paternity of the child from him is not established, because conception must have taken place before the marriage; but if she is delivered at six months or more its paternity is established, because of the subsisting firash, or bed, and the completion of the term of pregnancy, whether he acknowledges the child or remains silent; and if he should deny its birth, that may be estab lished by the testimony of one woman bearing witness to the fact." Another learned author, Mulla, in his "Principles of Mahomedan Law" (Fifteenth Edition, pages 283 and 284), relying on Baillie, observes as follows: ‑ "A child born within less than six months after marriage is illegitimate. A child born after six months from the date of marriage is presumed to be legitimate, unless the putative father disclaims the child. A child born within two years after the termination of the marriage is presumed to be legitimate, unless disclaimed. This is the rule of ‑Hanafi law."

18. In a subsequent case the Allahabad High Court took a different view of the matter and did not follow the line of reasoning adopted by Mr. Justice Mahmood in Muhammad Allahdad Khan case. That Court held in Sibt Muhammad v. Muhammad Hameed and others (I L R 48 All. 625) that on the question whether a Muhammadan child born within six months of the marriage of its parents was to be considered legitimate, section 112 of the Evidence Act applied and the child was legitimate. Referring to the views of Mr. Justice Mahmood, as expressed in Muhammad Allahdad Khan's case, their Lordships observed as follows: "Mr. Justice Mahmood did not express his own opinion regarding the solution of this difficulty, since it was unnecessary for him to do so for the decision of that case. Although that judgment was pronounced so long ago as 1888, the question how far section 112 of the Evidence Act is to be taken as over riding the rules of Muhammadan law does not seem to have been determined in any reported decision." Their Lordships did not accept the view of Sir Roland Wilson in his treatise on Anglo‑Muhammadan Law and citing, with approval, the views of two other learned authors, Messrs Mulla and Tayabji, stated as follows: ‑ "Section 112 of the Evidence Act applies by its terms to all classes of persons in British India and no exception is made in favour of Muhammadans. If it had been intended that the provisions of section 112 should not apply to Muhammadans, we should certainly expect to find a clear proviso to this effect. This course has been followed in other enactments, when general provisions of law were not intended to affect the rules of Muhammadan Law . . . . So if the legislature had intended that the provisions of section 112 of the Evidence Act should not apply to Muhammadans, or should not affect the rules of Muhammadan Law, this intention should have been clearly expressed. Section 112 is perfectly clear in its terms and we are not entitled to refuse to give effect to its provisions merely on the ground that such provisions are out of place in the Evidence Act and should have been included in the department of family law, or on the ground that the effect of these provisions, in their application to Muhammadan law, was unforeseen, or would be undesirable. In our view we are bound to give effect to the clear provisions of section 112, although they conflict with the rules of Muhammadan Law."

19. The Punjab Chief Court also held the view that the pro visions of section 112 of the Evidence Act apply to Mussalmans, to the exclusion of the rules of Muhammadan Law on the subject. In Rehmat Ali v. Mst. Allahdi (1 P R 1884), it was held by that Court that the rule of Muhammadan Law regarding legitimacy of a child was a rule of evidence within the meaning of section 2 of the Evidence Act, although it was also a part of the substantive Muhammadan Law and that when reading section 2 of the Evidence Act with section 5 of the Punjab Laws Act, the Courts are not bound to follow the said rule of Muhammadan Law. It was held further that section 112 of the Evidence Act did not lay down a maximum period of gestation and, therefore, did not bar the proof of the legitimacy of a child born more than 280 days after the dissolution of marriage, the effect of that section being merely that no presumption in favour of legitimacy is raised and the question must be decided simply upon the evidence for and against legitimacy. In a subsequent case Waras Muhammad v. Ali Bakhsh (76 P R 1891) the same Court held that the rule of Muhammadan Law which fixes two years as the period of gestation was a rule of evidence within the meaning of section 2 of the Evidence Act and that the effect of that section, when read with section 5 of the Punjab Laws Act, 1872, was that, under the latter Act, the Courts were not bound by the rule of Muhammadan Law.

20. The Lahore High Court took a slightly different view of the matter and held in Ghulam Mohy‑ud‑Din Khan v. Khizar Hussain (I L R 10 Lah. 470) that the plaintiff, who was born within 280 days after the death of one Hussain Bakhsh, who had married his mother some fourteen years before his death, was to be presumed to be the legitimate son of Hussain Bakhsh, in accordance with section 112 of the Evidence Act and that this presumption could ‑only be rebutted by showing that Hussain Bakhsh was not his mother's husband at the time when he could have been begotten.

21. In Muhammad Allahdad Khan's case, Mr. Justice Mahmood observed: "It may some day be a question of great difficulty to determine how far the provisions of that section are to be taken as trenching upon the Muhammadan Law of marriage, parentage, legitimacy and inheritance, which departments of law under other statutory provisions are to be adopted as the rule of decision by the Courts in British India." When making these observations the learned Judge had in his mind the provisions of section 24 of the Civil Courts Act, under which in cases of successions, inheritance, marriage, etc., the substantive rules of Muhammadan Law, as distinguished from pure procedural laws, appear to have been made applicable. The position in this part of the country was also similar, because under section 5 of the Punjab Laws Act, before it was first amended by the Muslim Personal Law (Shariat) Application Act, 1937, and, again, by the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, and by the Punjab Muslim Personal Law (Shariat) Application Act, 1951, in matters such as legitimacy, marriage, etc., personal law of the parties was made applicable. There was, thus, an apparent conflict between section 2 of the Evidence Act, which had repealed rules of evidence of Muhammadan Law, and section 5 of the Punjab Laws Act which made applicable all substantive rules of Muhammadan Law relating to certain matters, including marriage, legitimacy, etc.

22. The rule of Muhammadan Law regarding legitimacy is, in my opinion, not a mere rule of evidence, because under it if a child is born six months after the marriage of its parents, or within two years of the dissolution of the marriage, by death or divorce, it is considered to be the legitimate child of its father, unlike the rule of evidence in section 112 of the Evidence Act, under which only a presumption of legitimacy can be raised under certain circumstances. Under this rule of Muhammadan Law there is no question of such a presumption being raised and a child born after six months of the date of marriage of its parents is considered to be a legitimate child. That rule adopts the period of conception as the turning point of legitimacy, unlike the English Law which does not concern itself with conception but considers a child legitimate who is born of parents married before the time of its birth. This peculiarity of the English Law, as has been remarked by Mr. Justice Mahmood, in Muhammad Allahdad Khan's case, has been imported into this country by section 112 of the Evidence Act, as a rule of evidence only. 23, From what has been stated above, it is apparent that there are two divergent views on this subject. One of the views, which was expressed clearly by Mr. Justice Mahmood in Muhammad Allahdad's case, and which has been supported by such learned authors as Amir Ali and Wilson, is that the rule of Muhammadan Law regarding legitimacy being a part of substan tive law, the same could not be varied, or superseded, by the rule of evidence laid down in section 112 of the Evidence Act. The other view, which was expressed by the Allahabad High Court In Sibt Muhammad's case, is that although the provisions of section 112 of the Evidence Act come into conflict with the rule of Muhammadan Law, on this subject, they apply to Mussalmans also. The same view, as stated above, was expressed in two cases by the Punjab Chief Court, while its successor, the Lahore High Court expressed a slightly different view and held in Ghulam Mohy ud‑Din Khan's case that the presumption of legitimacy could be rebutted by showing that the child's father, Hussain Bakhsh, was not husband of its mother at the time when It could have been begotten, meaning thereby that if the child was begotten before its mother's marriage with Hussain Bakhsh, it could not be con sidered to be the latter's legitimate child. The reasoning of that eminent Judge, Mr. Justice Mahmood, is unassailable, and although he did not give a final decision in the matter, this being unnecessary for the purpose of that particular case, his view clearly was that by section 2 of the Evidence Act, the rule of Muhammadan Law regarding legitimacy had not been repealed. Their Lordships of the Privy Council, in Ashrujooddowla's case, also held that the rule of Muhammadan Law, on this subject, applied to Mussalmans and that the presumption of legitimacy from marriage followed the bed and that whilst the marriage lasted, the child of the woman was taken to be the husband's child, but that this pre sumption was not ante‑dated by relation. As at the time of decision of this case section 2 of the Evidence Act was not on the statute‑book, in deciding the case, their Lordships were guided only by the rules of Muhammadan Law on the subject. This authority, therefore, is not of much help fn deciding the point in issue. Amir Ali and Wilson, however, both expressed the same view, on this subject, as was expressed by Mr. Justice Mahmood, and were of the opinion that the rule of evidence laid down in section 112 of the Evidence Act had no application to Mussalmans.

24. Whether the view expressed by that eminent Judge, Mr. Justice Mahmood, and the two learned authors, Amir Ali and Wilson, is considered to be correct, or whether the view expressed by the Allahabad High Court in Sibt Muhammad's case is held to be laying down the correct law on this subject, by the repeal of section 2 of the Evidence Act, the position, in my opinion, has materially altered and the arguments advanced by the Allahabad High Court, in Sibt Muhammad's case, can no longer be advanced in support of that view.

25. Section 2 of the Evidence Act, as stated in an earlier part of this judgment, repealed (1) all rules of evidence not contained in any statute etc, (2) all rules and laws in force under the Indian Councils Act, and (3) all enactments mentioned in the Schedule to the Evidence Act. The rule of Muhammadan Law regarding legitimacy, being part of rules not contained in any statute, it fell within the purview of the first clause of this section, and therefore, was repealed by it, This section was repealed by the Repealing Act, 1938. The question that requires decision now is whether by repeal of section 2 of the Evidence Act the rule of Muhammadan Law, on this subject has been revived, or whether it continues to stand repealed.

26. Section 6‑A of the General Clauses Act, to which reference was made during arguments, was on the statute book when the Repealing Act, 1938, was passed and therefore, the repeal of section 2 did not affect the continuance of any amendments made by that section, so fat as it repealed statute law. The repeal of rules of Muhammadan Law by section 2 of the Act, however, stands on a different footing, because those rules of Muhammadan Law were not part of a Central Act or Regulation and hence their repeal by section 2 of the Evidence Act was not saved by section 6‑A of the General Clauses Act. What this section lays down is that where any "Central Act or Regulation" made after the commencement of the General Clauses Act, repeals any "enactment", by which the text of any "Central Act or Regula tion" was amended, then unless a different intention appears, the repeal shall not affect the continuance of any amendments made by the enactments so repealed. The expression "Central Act or Regulation" occurring in the first part of this section would be the Repealing Act, 1938, the expression "enactment" would be section 2 of the Evidence Act and the expression "Central Act or Regulation" occurring in this section, for the second time, would be the rules, laws, regulations and enactments mentioned in clauses (2) and (3) of section 2 of the Evidence Act, which had been repealed by that section. As a result of repeal of section 2, by virtue of section 6‑A of the General Clauses Act, the rules, laws, regulations and enactments mentioned in clauses (2) and (3) of section 2, would not be revived, but the rules of evidence mentioned in clause (1) of section 2 of the Evidence Act, being not part of a Central Act or regulation, the same would not stand repealed after the Repealing Act, namely, section 2 of the Evidence Act, had itself been repealed. On this view of the matter, I am of opinion that, after the repeal of section 2 of the Evidence Act, the rules of Muhammadan Law, which had been repealed by clause (1), have been revived and are now part of the law of Evidence.

27. Incoming to this conclusion I am not unmindful of the views expressed by our late Chief Justice in his Principles and Digest of the Law of Evidence (Fourth Edition pages 8 and 9) to the effect that section 2 was repealed, because its provisions had been spent and had become unnecessary. That view was based on the authority of an Allahabad case King v. King (A I R 1945 All. 190) but a reference to that authority would show that the observations made therein were of a general nature and were not in accordance with the provisions of section 6‑A of General Clauses Act. The case in question was under the Divorce Act and the learned Single Judge (Allsop, J.), who decided it, relying on an earlier decision of his own Ernest Lionel Doutre v. Anne Ruth Doutre (A I R 1939 All. 522) and an English case Russell v. Russell (194 A C 637) which was also a divorce case, expressed the opinion that the English rule that the evidence of non‑access by husband or wife was inadmissible did not apply to India, because it was a rule of evidence and all proceedings in this country were governed by the rules in the Evidence Act. The alternative argument advanced by the learned Judge, for coming to this conclusion, was that if the English rule of evidence was applicable to such a case, the same had been repealed and the repeal of section 2 of the Evidence Act, by the subsequent Amend ing and Repealing Act, made no difference, because its repeal did not have the effect of re‑enacting the rules so repealed. The relevant rule of evidence, which was sought to be made applicable to that case, was also not contained in a statute, like the rule of Muhammadan Law, which is sought to be made applicable in the present case, and, to this extent, the views expressed in this judg ment are applicable to the present case, but as, unfortunately, no reasons were given for holding that the repeal of section 2, by the subsequent Repealing Act, did not have the effect of re‑enacting the repealed rules, this authority is not of much help in deciding the disputed question. Consequently, as the views expressed by our late Chief Justice are based on this very authority and are not supported by the language of section 6‑A .of the General Clauses Act, the same will have to be overlooked for deciding the disputed question.

28. It was also suggested, during arguments that as the legislature could not have intended to re‑enact the rules of evidence which had been repealed by section 2 of the Evidence Act, when that section was repealed, effect will have to be given to the intention of the legislature, and, therefore, the rule of Muhammadan Law, on this subject, cannot be considered to have been revived. It is an established rule of interpretation that the intention of the legislature can be gathered only from the language) used by it in any statute and that if the language is unambiguous and capable of one meaning only, effect will have to be given to it even if it leads to unreasonable results. The preamble to the Repealing Act, 1938, which has been reproduced in an earlier part of this judgment, indicates that the enactments specified in the Schedule to the Act, which includes section 2 of the Evidence Act, were repealed, because they "had been spent, had otherwise become unnecessary or had ceased to be in force."

29. It appears that the draftsman of this Repealing Act confined his attention only to the effect of amendments made in enactments, such as Acts and Regulations, and did not have in his mind amendments made in other laws, which were not contained in such enactments. Neither from the preamble, nor from the body of the Repealing Act, can it be gathered that the intention was not to revive laws which were not contained in any enactments, such as the rules of evidence of Hindu and Muhammadan Law. The savings clause of this Repealing Act, which is almost a copy of section 6‑A of the General Clauses Act and which reads as follows, makes this intention quite clear "Where this Act repeals any enactment by which the text of any other enactment was amended by the express omission, insertion or substitution of any matter, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the commencement of this Act." I am, therefore, of opinion that it was not the intention of the legislature that those rules, which were not contained in any statute and which had been repealed by section 2 of the Evidence Act, were not to be revived after that section itself was repealed. .

30. Having held that the rule of Muhammadan Law, regard ing legitimacy, was a rule of substantive law and having also held that by the repeal of section 2 of the Evidence Act this rule of Muhammadan Law had been revived, Mst. Naziran Bibi cannot be held to be the legitimate daughter of Allah Bakhsh, because she was born within six months of the marriage of her mother, Aisha Bibi, with Allah Bakhsh. The finding of the trial Court on issue No. 1 is, therefore, wrong and is, hereby, set aside. However, as Mst. Naziran Bibi has been in possession of the land for more than 12 years, but was not entitled to it in her own right, she had become owner of it by reason of adverse possession. On this ground alone the appellants' suit should have been dismissed,) even if the trial Court had found the first issue in their favour.

31. The learned counsel for the appellants, at the close of his arguments, contended that as Mst. Aisha Bibi was pregnant at the time of her marriage with Allah Bakhsh, her marriage was void and for this reason also Mst. Naziran Bibi could not be considered to be the legitimate daughter of Allah Bakhsh. In view of what has been stated above, the decision, on this question, is not of much importance, but it may be added that according to Muslim Jurists the marriage of a pregnant woman is not void, but is invalid and the off springs of this marriage are considered to be legitimate. Amir Ali, in his Muhammadan Law (Fifth Edition page 202), relying on the opinion of Abu Yusuf and Muhammad, observes as follows :‑‑ . "There is great difference between a marriage which is void ab initio (batil) and one which is invalid (Jasid). If a man were to contract a marriage with a woman related to him within the prohibited degrees, the marriage would be void ab initio .. . . . . . . . . . . . . . . . . . .. . .. An invalid marriage is one where the parties do not labour under an inherent incapacity or absolute bar, or where the dis ability is such as can be removed at any time. The issue of such unions are legitimate." The position is stated more clearly In Hedaya (Book II Chapter I, page 32) in the following words :‑ "A man may lawfully marry a woman pregnant with whore dom but he must not co‑habit with her until after her delivery. This is the doctrine of Haneefa and Muhammad. Abu Yusuf says that a marriage made under such a circumstance is invalid." No contrary authority was cited by the appellants' counsel in support of his contention. In view of the decision already given, it is unnecessary to discuss the matter further.

32. The last argument advanced by the appellants' counsel was that as Mst. Naziran Bibi had married before the present suit was filed, she had forfeited her life estate, which she inherited as daughter of Allah Bakhsh and, therefore, could not, under the Muslim Personal Law (Shariat) Application, Act, 1951, claim more than one‑half of the property left by the deceased. Having held that Mst. Naziran Bibl was not the legitimate daughter of t Allah Bakhsh and that she became owner by reason of adverse possession for more than 12 years, the question of forfeiture of her interest, after her marriage, does not arise. Moreover, no such plea was raised by the appellants either in the plaint or in the grounds of appeal and, therefore, in the absence of an assertion of such a claim by the appellants and its denial by the respondents, the same cannot be adjudicated upon.

33. For reasons given above, I am of opinion that this appeal is without any force. I would, therefore, dismiss it, but as the respondents are absent, there would be no order as to costs. M. YAQUB ALI, J.‑‑I agree. A. H. Appeal dismissed.