Judgement

Appeal (No. 54 of 1920) from a judgment and decree of the High Court (August 1, 1918) affirming a decree of that Court in its original civil jurisdiction (May 14, 1917).

The first appellant instituted a suit against the respondents claiming to be the sole heir of Nawab Sobhan of Bogra ; the deceased Nawab was a Sunni Mohammedan. A second plaintiff to whom Habibur had transferred part of his claim was joined, but for convenience Habibur is hereinafter referred to as the appellant or the plaintiff.

The plaint alleged that the plaintiff was the son of the Nawab by his second wife one Mozelle Cohen, a Jewess converted to Mohammedanism. The respondents by their defence denied that the Nawab and Mozelle Cohen were married and alleged that the plaintiff was an illegitimate son of the Nawab by Mozelle Cohen. After the hearing was commenced the plaint was amended by alleging that the Nawab had acknowledged the plaintiff as his son, and stating that if the marriage was not proved

Law. Rep. 48 Ind. App. 114 ( 1920- 1921) Habibur Rahman C howdhury V. Altaf Ali C howdhury

26

reliance would be placed upon the acknowledgment as establishing the plaintiffs legitimacy.

Three of the issues framed were (1.) Was Mozelle Cohen married to Sobhan ? (2.) If so, was Habibur the legitimate son of Sobhan and Mozelle Cohen ? (6.) Was there any acknowledgment as pleaded, if so, what is its legal effect ?

The trial judge (Greaves J.) found upon the first issue that Mozelle Cohen was not married to the deceased Nawab, and on the second that Habibur was not their legitimate son. On the sixth issue he found that though the Nawab had not acknowledged Habibur as a son generally, he had done so on two occasions, but the learned judge said that he did not find that those acknowledgments were made with the intention of conferring legitimacy upon the plaintiff. Upon those findings, after a consideration of the law applicable, the suit was dismissed.

An appeal, heard by Sanderson C.J. and Woodroffe and Chitty JJ., was unanimously dismissed. The Chief Justice and Chitty J., in separate judgments, each found that the alleged marriage was disproved, and held that that being the case the suit failed, since the plaintiff could not by any acknowledgment be rendered legitimate. Woodroffe J. held that no acknowledgment made with the intention of conferring legitimacy had been proved ; he accordingly agreed that the appeal should be dismissed. The judgments, both at the trial and upon the appeal, are reported at I. L. R. 46 C. 259.

1921. Sir John Simon K.C., De Gruyther K.C., and S. Hyam (Dube with them) for the appellants. The evidence established that the deceased Nawab acknowledged the plaintiff as his son, and did so in such circumstances as to show that the acknowledgment was of him as a legitimate son. In Mohammedan law an acknowledgment of paternity forms part of the substantive law of status, and is not merely of evidential application. That being so, proof of absence of a marriage is not material. Once legitimacy is established in law it is illogical to inquire whether the parents were married. It is conceded that an acknowledgment does not confer legitimacy if the respective ages of the supposed parents renders the truth of the statement impossible, or if a marriage between the supposed parents was impossible in law; none of these circumstances arise in this case. [Reference was made to Oomda Beebee v. Shah Jonah Ali (( 1866) 5 Suth. W. R. 132.), Bibee Nujeeboonissa v. Bibee Zumeerun (( 1869) 11 Suth. W. R. 426, 427.), Jaibun v. Bibee Nujeeboonnissa (( 1869) 12 Suth. W. R. 497.), Bibee Wuheedun v. Wusee Hossein (( 1871) 15 Suth.

W. R. 403.), Muhammad Allahdad Khan v. Muhammad Ismail Khan (( 1888) I. L. R. 10 A. 289.), Nawab Muhammad Azmat Ali Khan v. Lalli Begum (( 1881) L. R. 9 I. A. 8.), Syed Sadakut Hossein

v. Syed Mahomed Yusoof (( 1883) L. R. 11 I. A. 31.), Irshad Ali v. Kariman (( 1917) 22 C. W. N. 530.), Sadik Husain Khan v. Hashim Ali Khan (( 1916