P L D 1988 Supreme Court 8 (PLP)

NASIM HASAN SHAH. J.‑‑ The dispute in this case relates to the inheritance of one Hakam. On his death in the year 1954, the land in dispute was mutated in the name of the appellant (Bashir), as his son. The respondents, who are the collaterals of Hakam, brought a suit for possession of the disputed land on the pleas that the appellant was not the legitimate son of . Hakam and that they, as collaterals, were exclusively entitled for succeed to his property. ,The suit was decreed by the trial Judge but dismissed on appeal,' by the learned District. Judge, who held that the appellant was born out of a lawful wedlock between Barkat Bibi, his mother, and Hakam, deceased. . In second appeal, a learned Single Judge` of the High Court reversed the judgment of the lower appellate Court, restoring that of the trial Judge. Hence this appeal by leave of this Court. The issue of the appellant being the legitimate son of Hakam was contested by either side at the trial by production of oral evidence, but the appellant also relied on the three documents, the first being a mortgage deed (Ex.D.l), executed by Hakam, wherein it was recited that the mortgage amount was being raised for the purposes of the marriage of his son (Bashir, the appellant herein), the second document was another mortgage deed executed by Hakam, which was attested by the appellant as a marginal witness, describing himself as the son of Hakam and the this is a copy of a judgment in a criminal case in which the appellant, as an accused person, was described as the son of Hakam. The lower appellate Court, as observed earlier, upheld the appellants' claim disagreeing with the trial Court, which had foul d that the marriage of Mst. Barkat Bibi with Hakam was not proved. In the first place the learned counsel for the appellant has contended that the learned Single Judge in the High Court acted in excess of his jurisdiction under Section 100 of the Code of Civil Procedure by interfering with a finding of fact reached by the lower appellate Court, even though the finding could be said to be erroneous, which it was not. It was next contended that the learned Single Judge in the High Court has misinterpreted, the Muslim Law as regards the presumption of ligitmacy from ‑the acknowledgements made by Hakam in favour of the appellant. It is submitted that even the first Court ‑shad held that the marriage of Mst. Barkat Bibi with Hakam had not been performed in the regular customary way `but not that it stood disproved to detract from the documentary evidence of acknowledgement produced in the case from which a presumption of legitimacy could be validly drawn in favour of the appellants. It is also submitted on behalf of the appellants that the case of Allah Dad v. Muhammad Ismail (ILR 10 Allahabad page 29, on which reliance had been placed by the learned Single Judge in this respect has been commented upon by the famous Muslim Jurist Syed Amir Ali in his book as of doubtful validity. The learned counsel for the respondents have also been heard in reply. 'The important question, which arises in this case, is that when the oral evidence produced bar the parties is inconclusive what weight should ‑"be attached to Hakam's ackhowledgement contained‑ in the mortgage deed (D.1) to the effect that funds were required for his son Bashir, as he was getting married.? The learned Judge in the High Court did not give any weight to the above acknowledgement relying upon the following passage in Mahmood, J's well‑known judgment in Muhammad Allah Dad v. Muhammad Ismail (1888) 10 All 289, to wit:‑‑ "The Muhammadan Law of acknowledgement of parentage with its legitimating effect has no reference whatsoever to cases in which the illegitimacy of the child is proved and established, either by reason of lawful union between the parents of the child being impossible (as in ‑the case of an incestuous intercourse or an adulterous connection), or by reason of marriage necessary to render the child legitimate being disproved. The doctrine relates only to cases where either the fact of the marriage itself or the exact time of its occurrence with reference to the legitimacy of the acknowledged child is not proved in the sense of the law as distinguished from disproved. In other words, the doctrine applies only to cases of uncertainty as to legitimacy, and in such cases acknowledgement has its effect, but that effect always proceeds upon the assumption of a lawful union between the parents of the acknowledged child." This passage does not appear to be quite apposite to the facts of this case as there was no proof establishing the illegitimacy of the child (Bashir, appellant herein) and that this was only the assertion of the plaintiffs. In fact, the following observations of Justice Mahmood in this very judgment are more relevant in the present context. According to him, the doctrine of acknowledgement was "limited to cases of uncertainty of legitimate descent, and proceeds entirely upon an assumption of legitimacy and the establishment of such legitimacy by the force of such acknowledgement". This Court too has considered the effect of acknowledgement in Sher Afzal v. Shamim Firdaus P L D 1980 S.C. 228 and the following passage, at page 267 of the report, is instructive:‑ 'In Fazeelun Beebee v. Omdah Beebee 1868 10 South W.R. 469 at page 474 it was laid down that "when a man acknowledges a person to be his daughter, he must be taken to mean his legitimate daughter unless contrary appears". This case was (cited with approval of Sadik Hussain Khan v. Hashim Ali Khan and others 43 I.A. 212 (PC) where on the facts of that case, their Lordships observed, "now four persons have proved distinctly that Nawab acknowledged him to be his son. That prima facie means his legitimate son", and quoted the case hereinbefore mentioned in support thereof with approval. Similar view was expressed in Muhammad Allahdad Khan and another v. Muhammad Ismail Khan and others (ILR 10 All. 289) where Edge and Straight, JJ. held that "The rules of the Muhammadan Law relating to acknowledgment by a Muhammadan of another as his son are rules of the substantive law of inheritance. Such an acknowledgment, unless certain impediment exists, confers upon the person acknowledged the status of a legitimate son capable of inheriting. "Where there is no proof of legitimate birth or of illegitimate bird; ‑and‑the _paternity of a child is unknown, in the sense that no specific person is shown to be the father, then the acknowledgment of him by another who claims him as a son affords a conclusive presumption that he is the legitimate child of the acknowledger, and places him in that category. Such a status once conferred cannot be destroyed by any subsequent act of the acknowledger or of any one claiming through him. "Mahmood, J., on the subject expressed his views to the sere effect bar holding that "although, according to the Muhammadan Law, ikrar or acknowledgement in general stands upon much the same footing as an admission as defined in the Evidence Act, acknowledgements of parentage and other matters of personal status stand upon a higher footing than matters of evidence, and form a part of the substantive Muhammadan Law. So far as inheritance through males is concerned, the existence of consanguinity and legitimate descent is an indispensable condition precedent to the right of succession, and such legitimate descent depends upon the existence of a valid marriage between the parents. Where legitimacy cannot be established by direct proof of such a marriage, acknowledgement is recognised by the Muhammadan Law as a means whereby marriage of the parents or legitimate descent may be established as a matter of substantive law. Such acknowledgement always proceeds upon the hypothesis of a lawful union between the parents and the legitimate descent of the acknowledged person from the acknowledger, and there is nothing in the Muhammadan Law similar to adoption as recognised by the Roman and Hindu systems, or admitting of an affiliation which has no reference to consanguinity or legitimate descent." Muslim Law presumes in favour of marriage in the absence of direct evidence on the point provided, however, evidence exists to p show that a man and woman have lived together as man and wife for a long time. The law on the subject has been quite felicitously summed up by Tyabjee in the following passage:‑ "Legitimacy of a child may be presumed where there had been continuous cohabitation of the alleged parents, acknowledgement of the child by the father, treatment by the father of the mother and child, and repute and notoriety amongst members of the family, the community, or respectable members of the locality. " S.222: Handbook of Muhammadan Law by Tyabjee 1966 Ed. In Hamida Begum v. Murad Bggum P L D 1975 S.C. 624, this Court, following the decision of the.' Privy Council"in Syed Habibur Rehman Chowdhry v. Syed Altaf AliThowdlfry ‑XTR 1922 P.C. 159, endorsed this view and enunciated the law on the subject as follows:‑ "Legitimacy a status which results from certain facts, whereas) legitimation is a proceeding which creates a status which did' not exist 'before. This proceeding becomes necessary where either the existence of a valid marriage cannot be expressly proved or where the child is born within six months of the marriage as stated above. In such cases, acknowledgement of legitimacy in favour of the child may be either express or by necessary implication from the course of treatment by the man of the mother and the child, or from the evidence of repute and notoriety amongst the members of the family, community and respectable members of the locality. Such an acknowledgement raises a presumption of a valid marriage and legitimate birth". In the present case there was, at best, some uncertainty with regard to the fact whether Mst. Barkat Bibi was the duly‑wedded wife of Hakam and, therefore, whether Bashir appellant could be deemed to have been born out of a lawful wedlock between the two. But this uncertainty stood removed by Hakam's assertion in the 1 mortgage deed (Ex. D.1) that the aforesaid mortgage was being executed as the mortgage amount was required for defraying the expenses of the marriage of his son Bashir (the appellant herein). Such a acknowledgement had the effect of raising a presumption of a vali marriage between him and Mst. Barkat Bibi and of establishing the legitimacy of Bashir aforesaid. The upshot is that this appeal succeeds, the judgment and, decree of the High Court dated 28‑1‑1970 is set aside and the decree of the District Judge, Sialkot dated 9‑10‑1958 restored. This appeal, accordingly, is allowed but, in view of the delicacy of the question involved, the parties will be left to bear their own costs. M.B.A./B‑20/S Appeal allowed.