JUDGMENT

1. This is a first civil appeal against the judgment and decree dated 8th February 1939, passed by the learned civil Judge of Mohanlalganj, Lucknow, dismissing the appellant's suit with costs. The suit was brought by the appellant Mt. Masuma Begam consequent upon an unsuccessful claim before the Wasiqa Officer, Lucknow, to the Wasiqa of one Mt. Mustafa Begam who died in 1937. The other claimant was the defendant respondent, Mohammad Raza alias Banney son of the deceased Mustafa Begam, and his claim was allowed by the Wasiqa Officer in preference, to that of the appellant. The appellant obtained a certificate from the Commissioner, Lucknow Division, under Section 6, Pensions Act of 1871, allowing her a period of three months to institute a suit for a declaration that she is entitled to the wasiqa as the heir of Mustafa Begam. The appellant admitted that the respondent, Mohammad Eaza, was the son of Mustafa Begam, but alleged that he was illegitimate, his father being one Kunj Behari alias Bankey Behari and not Mustafa Begam's husband, Syed Mohammad Taqi.

2. Mt. Mustafa Begam had inherited a share in the wasiqa of her mother, Mt. Wajihunnisa, who died in the year 1893. Mt. Wajihunnisa was first married to one Mohammad Hasan Khan by whom she had a daughter, Afsar Jehan Begam. Her second husband was Syed Tasadduq Husain who had previously married Mt. Ahmadi Begam. The appellant, Mt. Mustafa Begam was his daughter by this lady. By Mt. Wajihunnissa Syed Tasadduq Husain had two daughters, Mt. Murtaza Begam and Mt. Mustafa Begam. Mt. Wajihunnisa's other two daughters, Afsar Jehan Begam and Murtaza Begam, shared her wasiqa with the third daughter, Mt. Mustafa Begam. Mt. Mustafa Begam was married to Syed Mohammad Taqi in 1879, each of them being said to be about three years old at that time. The date of birth of the respondent, Mohammad Raza, is in dispute, as also is the date when Mustafa Begam began to live with her husband. It was the appellant's contention that the rukhsati did not take place until 1896, and that Mohammad Raza had been born some years before. The respondent alleged on the other hand that the rukhsati took place in the lifetime of his grandmother, Mt. Wajihunnisa, who, as we have mentioned, died in 1893.

3. The appellant tried to prove her case partly by evidence that Mohammad Raza was born prior to the rukhsati, and partly by evidence of conduct on the part both of Mustafa Begam and of her husband Syed Mohammad Taqi, showing, it is contended, that Mohammad Raza was not treated as the legitimate son of his mother Mustafa Begam. We may at once say that even if the appellant succeeded in proving that the birth of Mohammad Raza took place before the rukhsati, and also in showing that the conduct of his parents threw great doubt on his legitimacy, that would not in our opinion be sufficient to rebut the presumption raised by the fact that Mohammad Raza's birth took place during the continuance of a valid marriage between his mother and Syed Mohammad Taqi. Under Section 112, Evidence Act, that fact must be considered conclusive proof that he is the legitimate son of Syed Mohammad Taqi unless it can be shown that the parties had no access to each other at any time when he could have been begotten.

4. It is admitted that the marriage took place in 1879, and it is also admitted that the marriage was valid and complete at that date. It is also admitted that the rukhsati ceremony is legally no part of a Mahomedan marriage. That being so, it was essential for the appellant to show that the parties had no access to each other at any time when Mohammad Raza could have been begotten, and the question whether his birth took place prior to the rukhsati is immaterial. The appellant has made no attempt to prove this. It is admitted that Mustafa Begam and Syed Mohammad Taqi were living continuously in the City of Lucknow from the time of their marriage, and there is not an iota of evidence on the record to suggest that they cou