Judgment

Bhagwati J. - This is an appeal from the judgement and decree of the High Court of Judicature at Allahabad which set aside a decree passed by the Civil Judge of Azamgarh decreeing the plaintiff s claim.

2. One Haji Abdur Rahman, hereinafter referred to as "Haji" a Sunni Mohammedan, died on 26-1-1940 leaving behind him a large estate. He left him surviving plaintiffs 1 to 3, his sons plaintiff 4 his daughter and plaintiff 5 his wife, defendant 6 his sister, defendant 7 his daughter by a pre-deceased wife Batul Bibi and defendants 1 to 4 his nephews and defendant 5 his grandnephew. Plaintiff s case is that immediately after his death defendant 1 who was the Chairman, Town Area qasba Mubarkpur and a member of the District Board, Azamgarh and defendant 5 who was an old associate of his, started propaganda against them that they set afloat a rumour to the effect that plaintiffs 1 to 4 were not the legitimate children of Haji and that plaintiff 5 was not his lawfully wedded wife, that defendants 1 to 4 set up an oral gift of one-third of the estate in their favour and defendant 5 set up an oral will bequeathing one-third share of the estate to him and sought to interfere with the possession of the plaintiffs over the estate and nearly stopped all sources of income. It was alleged that under these circumstances a so-called deed of family settlement was executed by and between the parties one 5-4-1940 embodying an agreement in regard to the distribution of the properties belonging to the estate, that plaintiff 3 was a minor of the age of about 9 years and he was represented by plaintiff 1 who acted as; his guardian and executed the deed of settlement for and on his behalf. On these allegations the plaintiffs filed on 25-11-1940 in the Court of Civil Judge of Azamgarh the suit out of which the present appeal arises against defendants 1 to 5 and defendants 6 to 7 for a declaration that the deed of settlement dated 5-4-1940 be held to be invalid and to establish their claim to their legitimate shares in the estate of Haji under Mohammedan Law. Defendant 8 a daughter of plaintiff 5 whose paternity was in dispute was added as a party defendant to the suit, the plaintiffs claiming that she was the daughter of plaintiff 5 by Haji and defendants 1 to 5 alleging that she was a daughter of plaintiff 5 by her former husband Alimullah.

3. The only defendants who contested the claim of the plaintiff were defendants 4 to 5. They denied that plaintiff 5 was the lawfully wedded wife and plaintiff 1 to 4 were the legitimate children of Haji. They also contended that the deed of settlement embodied the terms of a family settlement which had been bona fide arrived at between the parties in regard to the disputed claims to the estate of Haji and was binding on the plaintiffs.

4. It is significant to observe that defendants 6 to 7 who were the admitted heirs of Haji did not contest the plaintiffs claim at all.

5. The two issues which were mainly contested before the trial Court were, (1) Whether plaintiffs 1 to 4 are the legitimate issues of, and plaintiff 6 is the wedded wife of Abdul Rahman deceased;

(2) Whether the agreement dated 5-4-1940 was executed by the plaintiffs after understanding its contents fully or was obtained from them by fraud or undue influence ? Was the said deed insufficiently stamped ? Was it beneficial to the minor plaintiffs ?

6. As regards the first issue there was no document evidencing the marriage between plaintiff 5 and Haji . Plaintiff 5 and Haji had however lived, together as man and wife for 23 to 24 years and plaintiffs 1 to 4 were born of that union. There was thus a strong presumption of the marriage of Haji with plaintiff 5 having taken place and of the legitimacy of plaintiffs 1 to 4. The trial Court did not attach any importance to the question of onus or presumption, examined the evidence which was led by both the parties with a view to come to a finding in regard to this issue, and found as follows :

"So far as