Judgement

Appeal (No. 53 of 1928) from a decree of the Court of the Judicial Commissioner (January 24, 1927) reversing a decree of the District Judge, Kohat.

The appellant, a Mahomedan, sued claiming (inter alia) a declaration that he was the lawful son of Khushdil Khan, deceased. The District Judge made a decree accordingly, but it was reversed on appeal to the Court of the Judicial Commissioner.

The facts and the grounds of the decisions appear from the judgment of the Judicial Committee.

Law Rep. 56 Ind. App. 201 ( 1928- 1929) Mohabbat Ali Khan V. Mahomed Ibrahim Khan

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1928. Dec. 3, 4. De Gruyther K.C. and Parikh for the appellant.

Dunne K.C. and W. Wallach for the respondents.

As to the presumption arising from acknowledgments reference was made to Fuzeelum v. Abdool Wahed (( 1868) 10 S. W. R. 469, 474.) ; Sadik Husain Khan v. Hashim Ali Khan (( 1916) L. R. 43 I.

A. 212,231.) ; Imambandi v. Mutsaddi (( 1918) L. R. 45 I. A. 73, 82.); Habibur Rahman Chowdhury

v. Altaf Ali Chowdhury (( 1921) L. R. 48 I. A. 114.); Ameer Ali, Mahommedan Law, 3rd ed., vol. ii.,

p. 255, and Wilsons Anglo-Muhammadan Law, ss. 84, 85 ; and as to the observation of parda in the North-West Provinces to Jamil-ud-din v. Abdul Majeed. (( 1915) 13 All. L. J. 361.)

March 7. The judgment of their Lordships was delivered by

LORD SHAW. This is an appeal from a decree of the Judicial Commissioner for the North-West Frontier Province dated January 24, 1927, which set aside a decree dated April 14, 1925, of the Court of the District Judge, Kohat. The District Judge had decreed that the appellant is the legitimate son of one Khan Sahib Khushdil Khan. The Judicial Commissioner reversed this judgment and dismissed the plaintiffs suit.

The plaintiff was born in 1906. It is not disputed that he is the son of Khushdil Khan by Musammat Babo. Various questions were raised in the case, but the only point remaining for determination in this appeal is whether the appellant is the legitimate son of Khushdil Khan, that depending upon whether Khushdil and Musammat Babo were married persons.

In August and September, 1923, Khushdil had serious attacks of illness, accompanied by paralysis and aphasia. While still suffering from these diseases he, on April 2, 1924, executed a deed of gift by, as was alleged, making his thumb impression upon the deed after the provisions thereof had been carefully explained to and assented to by him. This part of the case drops out, both Courts below having con curred in finding that Khushdil was proved to have been mentally incapable of understanding the deed on account of his illness, and that the deed was therefore invalid.

The remaining part of the suit, however, is head 1 of the plaint, which asks the Court to pronounce a declaratory decree " that plaintiff is the lawful son of the said Khan Sahib Khushdil Khan," and upon this the Courts below have differed. If the plaintiff is the lawful son he is the sole male heir of Khushdil and the property sights in the deceaseds estate would be regulated accordingly.

The question whether Khushdil and Musammat Babo were married is one of fact, and as such was investigated and has been summarized with the utmost care by the District Judge. A most important part of the case attempted to be made by the respondents was that such a marriage was legally impossible, because at the time of the marriage, and the birth of the appellant, the lady was already married to one Ilyas. The respondents plead that " her husband Ilyas died six or seven years ago and she was bound to him by nikah up to that time." Had this been established it would, of course, have been a complete answer to the appellants suit. Both Courts below, however, have agreed that there was no such marriage, and that the body of evidence produced to that effect is altogether untrustworthy. As the District Judge puts it, " the story that Ilyas was married to Musammat Babo is fictitious."

What remains accordingly is of a limited scope. But it must b