Judgement

Appeal from a judgment and decree of the High Court (August 30, 1911) affirming a decree of the second Subordinate Judge of Saran.

By a registered deed of sale dated June 10, 1906, and made in consideration of Rs. 10,000, Enayet-uz-Zohra (respondent No. 3) purported to convey to the first two respondents the shares of herself and of her minor son and daughter (respondents Nos. 4 and 5) in the property inherited by them respectively from Ismail Ali Khan, deceased. The deed was expressed to be made by the mother on behalf of herself and as guardian of her two minor children, but she had not been appointed their guardian under the Guardian and Wards Act (VIII. of 1890). Zohra claimed that she had been married to the deceased, a Mahomedan of the Sunni sect, and that her said children were his legitimate children. An application by the transferees for registration was opposed by the widows of the deceased (appellants Nos. 1 and 5), who applied for registration in the names of themselves and their children. The former applica tion was rejected and the latter allowed, and that decision was subsequently affirmed by the Collector and Commissioner.

On March 25, 1909, the first and second respondents instituted the present suit against the appellants, namely the two admitted widows and their minor children, and joined as defendants also Zohra and her minor children. The claim in the plaint was for a declaration that Zohra was the nikahi wife, and her children the legitimate children of Ismail Ali Khan ; that the property in suit was inherited by them, according to their respective shares, as his heirs; and that the defendants had no rights in the purchased property. It was further prayed that the plaintiffs might be given possession under the deed of sale and have a decree for mesne profits.

The following, amongst other, issues were settled (4.) Is the defendant No. 8, namely Zohra, the married wife, and are the defendants 9 and 10, namely her children, the legitimate children, of Ismail Ali Khan ? Were they acknowledged by him as such? (5.) Is the sale deed dated June 10, 1906, valid, and does it confer any title on the plaintiffs ? Whether the contesting defendants can question the transfer? (8.) Of what properties the plaintiffs are entitled to recover possession?

The trial judge on the fourth issue found in favour of the plaintiffs, and on the fifth issue he found that the deed was duly executed. He made declarations as prayed and a decree for possession.

An appeal to the High Court was dismissed. The learned judges (Mukerji and Carduff JJ.), after a full examination of the evidence, confirmed the finding of the trial judge upon the fourth issue. On the fifth issue they said that the question whether Zohra as de facto guardian of her children was competent to alienate their shares did not properly arise in the suit, since the appellants did not claim through the children but repudiated their claim.

A question arose in both Courts as to the admissibility and value of certain account-books. The manner in which that question was dealt with appears from the judgment of their Lordships.

1917. Nov. 22, 23, 26, 27, 28. Upjohn, K.C., and Abdul Majid for the appellants. The Courts in India wrongly excluded the books of account tendered in evidence by the appellants. Had due weight been given to them they would have rebutted the presumption (if any) arising from the alleged acknowledgments. The concurrent findings of fact consequently are not conclusive Gabindsundari v. Jagadamba. (( 1870) 6 Beng. L. R. 168 (P.C.).) The evidence did not establish the alleged marriage ceremony. The requirement of Mahomedan law of an unambiguous acknowledgment before witnesses is a matter of substance and not of evidence Baillies Digest ( 1865 ed.), pp. 4, 5, 7, 749 ; Baillies Mahomedan Law of Inheritance (1824), pp. 28, 31 ; Fatawai Alamgiri, vol. 4, p. 48; Aklemannessa v. Mahomed Hatem. (( 1904) I. L.R.31 C. 849, 856.) The evidence as to alleged ackn