JUDGMENT

1. The sole question in dispute in this case is whether the plaintiff, Umar Hayat, who claims to be a son of Muhammad Khan deceased, is a ligitimate son of the deceased or not. Umar Hayat is a minor, and sues through his next friend, Feroz Khan, who is his maternal uncle. Muhammad Khan died on the 27th December 1906 and the plaintiff was born on the 27th February 1908, i.e., fourteen months after the death of his father. Muhammad Khan was a young man about 18 at the time of his death, and admittedly died after some illness. It is noted in the report made as to his death that he was ill for about a month before he died. He had been married to Mt. Nur Bhari, the mother of Umaray Hat, for about four years and they bad had no child before. The deceased was the owner of about 2834 kanals of land and a house and the land was mutated in the name of his widow, Mt. Nur Bhari, on the 10th April, 1907. Shortly after the birth of Umar Hayat, his mother applied for mutation of half the land in his favour, on the ground that he was the legitimate son of Muhammad Khan. The reversioners of the deceased objected to this mutation and it was not allowed. Mt. Nur Bhari died in 1910 and in 1913 the property was mutated in favour of the reversioners of Muhammad Khan. The plaintiff filed the suit out of which this second appeal has arisen on the 2nd August, 1917. The Subordinate Judge, First Class, who tried this suit, held that there was no inherent impossibility in a child being born fourteen months after the death of his father, in view of the fact that cases of the period of gestation being prolonged to that extent or even longer are recorded in books of jurisprudence. He also found that there was nothing to show that Mt. Nur Bhari was unchaste, and, coupling these facts together, he held that the plaintiff was proved to be legitimate and passed a decree in his favour for possession of the land and the house in dispute. The defendants appealed against this order and the learned District Judge accepted their appeal, holding "that the chance that the plaintiff is the son of Muhammad Khan is so indefinitely remote that it may safely be regarded as impossible." The second appeal before us is against the above decision of the lower appellate Court and has been argued at great length before us by Dr. Muhammad Iqbal. We have also heard Dr. Nand Lal for the respondents.

2. The learned Counsel for the plaintiff-appellant starts by pointing out that according to Muhammadan Law, if a child is born within two years after the dissolution of a marriage by death or divorce he is presumed to be legitimate. He contends that the above presumption, under the Muhammadan Law, is not merely a rule of evidence. Reference is made to Section 2 of the Evidence Act, and it is argued that it has not touched the presumptions arising under the personal law of the parties in matters relating to inheritance and legitimacy, etc. Section 5 (6) of the Punjab Laws Act is also referred to, as providing that Muhammadan Law, in cases where parties are Muhammadan, shall be the rule of decision in questions regarding "bastardy and family relations," among other things. Reliance is placed on certain remarks made in various text-books of Muhammadan Law, to show that Section 112 of the Indian Evidence Act, which lays down that any person who is born within 280 days after the dissolution of marriage between his mother and any other man is presumed to be legitimate, and implies that any one born after that period may be presumed to be illegitimate, does not apply to Muhammadans. A digest of Anglo-Muhammadan Law by Sir Roland Kynvet Wilson, as revised by Mr. Abdulla Yusafally, in paragraph 83, expresses an opinion to the above effect. A book on "Principles of Muhammadan Law" by Mr. Tyabji (II Edition), page 267, is also referred to, where the author, referring to Section 112 of the Evidence Act, says that that section does not purport to lay down that legitimacy cannot be established