In determining the applicable rules of succession under Mahomedan law, the sect of the deceased is established by analyzing their religious conduct, observances, and the manner of ancestral estate distribution, especially when oral evidence is contradictory.

Judgement

Appeal from a decree of the High Court (Nov. 27, 1884) reversing a decree of the Subordinate Judge of Moradabad (Dec. 4, 1882).

The question in the appeal was one of evidence and its effect, whether Wazir-un-Nissa died a Sunni or a Shia.

Mayne, for the Appellants.

Doyne, and R. C. Saunders, for the Respondent.

The following cases and authorities were referred to Hamiltons Hedaya, Preliminary Discourse; Wujib-on-Nisa Khanum v. Mirza Husun Ali (1 Sel. Rep. 266.); Rajah Deedar Hossein v. Ranee Zuhoor-oon-Nissa (2 Moores Ind. Ap. 441, 469.); Mirza Kasim Ali v. Mirza Muhammad Hosen (5 Sel. Rep. 213.).

Law. Rep. 17 Ind. App. 73 ( 1889- 1890) Mussammat Hayat-Un-Nissa V. Sayyid Muhammad Ali Khan 10

The judgment of their Lordships was delivered by

LORD WATSON —

This suit relates to the immoveable estate of Wazir-un-Nissa, a Mahomedan lady, who died childless and intestate on the 26th of October, 1881. Her father, Ghulam Ali, died without male issue in the year 1838, leaving three widows, two of whom were childless. Besides the deceased, whose succession is now in dispute, Ghulam Ali had another daughter, Kulsum, married to Iradat Ali, there being one son of their marriage, who died in minority; and eventually Iradat Ali became entitled, as heir of his minor son, to his wifes share of her fathers estate. After the death of Kulsum, Iradat AH became the husband of Aswat-un-Nissa, one of the parties to this appeal.

The Appellants, Plaintiffs in the suit, are the female descendants of Basawan Ali, the maternal uncle of the deceased Wazir-un-Nissa. The Defendant in the suit, and Respondent in this appeal, is Muhammad Ali Khan, a collateral relative of the deceased in the ascendant line. The common ancestor of the parties was Karamat Said, whose younger son was father of Daud Ali, the father of the Respondent. The elder son of Karamat had two sons, Kasim, the father of Ghulam Ali, already mentioned, and Farzand, who died without issue. The Appellants are Mahomedans, and so were Karamat and all his descendants, and the case must be decided according to the principles of MAHOMEDAN LAW . But the rules of that law applicable respectively to Shia and Sunni succession are different; and, therefore, the true heirs of Wazir-un-Nissa can only be discovered by first ascertaining to which of these rival sects the deceased belonged at the time of her death. The Appellants allege that she was a Shia, the Respondent that she was a Sunni. It is admitted that, according to the Shia rule, the Appellants are her legal heirs; and it is also matter of admission that, according to the Sunni rule, the Respondent, being a paternal ascendant tracing his connection with the deceased through an unbroken line of males, is entitled to take her estate to the exclusion of the Appellants, whose relation to her is through a female. Whether the deceased was, in point of fact, a Shia or a Sunni, is the single issue presented for decision.

Wazir-un-Nissa was for many years the wife of Sayyid Hadji, a staunch member of the Shia sect, who died in the beginning of the year 1865. The case made by the Appellants in their pleadings and evidence is to the effect that Karamat and all his descendants were Shias; that Wazir-un-Nissa was the daughter of a Shia, and brought up as a Shia; that she married a husband of her own sect, and ever after his death continued to adhere to the faith and to practise the ceremonies of that sect. On the other hand, the case presented in the Respondents evidence is that Ghulam All and his daughter Wazir-un-Nissa were Sunnis; . that she was under the necessity of suppressing her true faith during the subsistence of her marriage, and of conforming outwardly to that of her husband; and that, on his decease, she resumed observance of the rites peculiar to the Sunni sect, and lived and died a member of it.

Upon all points material to the issue thus raised, with one or two exceptions, the oral evidence adduced by the parties is in direct conflict. T