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ALLAHABAD HIGH COURT
GRIMWOOD MEARS, MUKERJI, JJ.
Muhammad Shafiq-Ullah Khan - Appellant
Versus
Nuh-Ullah Khan & Ors. - Respondents
Appeal No. 07 of 1924
Decided On : 08-06-1925
JUDGMENT
Mears, Knight C.J. and Mukerji, J. - This appeal comes before this Bench on account of a difference of opinion between two learned Judges of this Court who heard the appeal in the first instance from the court of a Subordinate Judge. The two learned Judges having differed, this appeal was filed u/s 10 of the Letters Patent.
2. The only point for determination in this appeal-is whether the Defendants Respondents are the legitimate sons of one Inayat-ullah Khan.
3. [The Court then discussed the evidence and continued:]
4. Taking the whole evidence on the record, therefore, we are more than satisfied that the Plaintiff's case is a true one, namely, Inayat-ullah kept a Hindu married woman as his mistress, and the Defendants are the children of Inayat-ullah by that woman.
5. In the teeth of the above finding no rule of presumption of legitimacy or marriage can avail the Defendants. The state of the law has been very clearly set forth in the judgment of this Court delivered by the learned Judge who was for decreeing the appeal, and we do not propose to go over the same ground again. It would be sufficient to mention that it is only where direct proof of marriage is not available that indirect proof of marriage by way of acknowledgment of legitimacy in favour of a son is allowed to take the place of direct proof of marriage. Where direct proof is available to establish that marriage was impossible or a marriage would be invalid, no question of presumption of marriage on account of an alleged acknowledgment can arise. See the Privy Council case of Habibur Rahman Chowdhury v. Altaf Ali Chowdhury ILR (1921) Cal 866., also Muhammad Allahdad Khan v. Muhammad Ismail Khan ILR (1888) All. 289.
6. The result is that this appeal succeeds, and we set aside the decrees of this Court and that of the court of first instance and decree the Plaintiff's claim for possession with costs throughout.
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