1. It is found by the lower appellate Court that the second respondent, Miya Saheb valad Maula Saheb, who was defendant No. 4 in the suit which has led to this second appeal, was acknowledged by Maula Saheb as his son, and that the acknowledgment fulfills all the requirements of and is, therefore, valid according to Muhammadan law. This latter finding as to the legal validity of the acknowledgment is impugned before us upon the ground that, on the facts found the second respondent must be held to have been born of what in Muhammadan law is called zina, fornication or adultery and that such a boy cannot, according to that law, be acknowledged as son.
2. The findings of the learned District Judge in appeal are not sufficiently clear. He holds upon the evidence that even if Jainabi's husband was still living when the child was born, he had divorced his wife before that birth.' But that leaves the question still open whether at the time of conception Jainabi had been divorced. On that point all the learned Judge says is that he 'should not be prepared to hold the acknowledgment was invalid even if it were proved that at the time of conception Maula was having adulterous intercourse with Jainabi.'
3. It is, however, not necessary to send the case back for a finding on that question, because even upon the facts, so far found definitely, the acknowledgment cannot be legal, according to Muhammadan law.
4. Jainabi's marriage with Maula Saheb was subsequent to the birth of the second respondent. Whether at the time of conception, she was still the wife of her former husband, not having been divorced by him, or had ceased to be his wife by reason of divorce, the illegitimacy of the respondent in question is a proved fact in either case and he is a child born of zina, which includes both fornication and adultery.
5. In the Full Bench case of Muhammnd Allahdad Khan v. Muhammad Ismail Khan 10 A. 289 Straight, J. said:
Birth during wedlock, that is to say, legitimate birth, necessarily confers a right to inherit; illegitimate birth, that is, without wedlock subsisting between the father and mother at the date of the child's begetting, confers no such right. But where there is no proof of legitimate birth or illegitimate birth and the paternity of a child is unknown in the sense that no specific person is shown to have been his father, then his acknowledgment by another, who claims him as his son, according to the authorities I have quoted from, affords a conclusive presumption that the child acknowledged is the legitimate child of the acknowledger and places him in the category.
Children born of zina (which means fornication, adultery or incest) can never be legitimated or entitled to inherit from their father. Nor can such children be made legitimate by any kind of acknowledgment where the illegitimacy is a proved and established fact.
7. This view of the Muhammadan Law has been followed in Liaqat Ali v. karim-un-uissa 15 A. 396 and Dhan Bibi v. Lalon Bibi 27C. 801. See also Mr. Amir Ali's Personal Law of Muhammadans: Vol. II, Edition of 1900, page 235.
8. The decree appealed from must be reversed and that of the Subordinate Judge restored with costs throughout on the respondents.