1. One, Habeebulla Hussaini died on the 7th February, 1967. At the time of his death he was the owner of a house and some moveable property. The appellants herein filed the suit O. S. 461/69 on the file of the V Additional Judge, City, Civil Court, Hyderabad for recovery of possession of the house and moveable property claiming that he was the brother of the deceased Habeebulla Hussaini and is his sole heir. In the plaint it was stated that defendants 1 and 2 were claiming the properties on the ground that defendant 1 was the wife and defendant 2 is the son of the deceased. The plaintiff contended that the first defendant was only a maid-servant of Habeebulla Hussaini and was living in the same house. She was not the legally wedded wife of Habeebulla Hussaini, nor is the second defendant his son.
2. The second defendant filed a written statement contending that though the first defendant was a Hindu Harijan she was converted into Islam and took the name Hussain Bee and married Habeebulla Hussaini. The second defendant was the son born out of lawful wedlock of the first defendant with the deceased ........................................ Hence they were the heirs entitled to the property and in their presence the plaintiff who was the brother had no right or claim to the property. Defendants 3 and 4 to the suit are the children of the first defendant by her first husband Venkatasami who died long ago. D-3 filed a written statement supporting the contention of the second defendant. D-1 and D-4 remained ex parte. The Court below after framing the necessary issues and considering the oral and documentary evidence produced in the case held that D-1 was the legally wedded wife of Habeebulla Hussaini and D-2 was their son and in their presence the plaintiff was not an heir according to the personal law. It further held that there was no evidence that Habeebulla Hussaini left the plaint B Schedule property and movable properties. In the result, it dismissed the plaintiffs suit with costs of the second defendant and as the suit was filed in forma pauperis it directed the plaintiff to pay the Court-fee on the plaint. The plaintiff has preferred this appeal against the said judgment and decree.
3. In this appeal it is contended as was done in the Court below, that D-1 is not the legally wedded wife of Habeebulla Hussaini and the second defendant is not his son and therefore they are not his heirs and the plaintiff is the sole-heir entitled to his property. It is not disputed that the plaintiff is the brother of the deceased Habeebulla Hussaini. The burden is upon defendants 1 and 2 to satisfy the Court that the first defendant was the lawfully wedded wife and the second defendant is the son of Habeebulla Hussaini. In this connection it may be mentioned that the first defendant died during the pendency of the suit.
4. In support of the second defendant contention he relied upon the oral evidence of D. Ws. 1 to 9 of whom D. W. 7 is the second defendant himself. He also relied upon certain documents which will be referred to presently.
5. The second defendant as D. W. 7 deposed that Habeebulla Hussaini was his father and his mother was Hussain Bee. Both of them were residing in the same house. When his father died he performed the funeral ceremony and bore the funeral expenses of his father. His father got him employed at the industrial High School at King Kothi and in the application foe employment he was referred to as the son of Habeebulla Hussaini. In cross-examination he admitted that he had no record to show that Rajamma (the name of his mother before she married Habeebulla Hussaini) was converted to Islam. He stated that he did not know what name she was having when she was a Hindu. It was elicited from him that when his mother died, she was burried in the 'Smashan Ghat' of the Hindus. He denied the suggestion that his father Habeebulla Hussaini was unmarried, he had kept his mother in a room in a house paying monthly salary of Rs. 4/- to her and that he was not the son of late Habeebulla Hussaini and he was the son of another person called Habibulla.
6. D. W. 1 is an old man aged 75 years. He deposed that the first defendant's name was originally Rajamma and after marriage she was called Hussain Bee. She was living in the house of Habeebulla Hussaini till his death. Tow children were born to her by Habeebulla Hussaini namely, the second defendant and a daughter who died subsequently. He deposed that the marriage of the second defendant performed the funeral ceremony of his father. He also deposed that Habeebulla Hussaini was telling him that he had taken the first defendant as his wife by way of Moota marriage. In cross-examination he admitted that he was not present at the Moota Marriage and he did not know what Moota marriage, was. He also stated that he did not know when D-1 embraced islam. He however added that he knew the first defendant since he attained the age of discretion, that her first husband was a Hindu called Venkati. Though he was not present when the first defendant embraced Islam he was told by Habeebulla Hussaini that she had embraced Islam. He stated that Habeebulla Hussaini told him in the presence of several persons that he married Rajamma and that she embraced Islam and that the second defendant is his son. It was suggested that Habeebulla Hussaini was not fit for marriage as the was impotent, that this was denied by the witness. D. W. 2 also spoke to the same facts. He stated that D-1 lived with Habeebulla Hussaini for a period of 35 years and the second defendant had a girl were born to her. The girl died. The marriage of the second defendant was performed by Habeebulla Hussaini. He also admitted that be had no personal knowledge of D-1 embracing Islam. He stated that he was Sunni and he does not know how moota marriage as performed as moota marriage is recognised only among Shias. In the re-examination he stated that people in the locality knew that D-1 was the wife and D-2 is the son of Habeebulla Hussaini. D. W. 3's evidence also is to the same effect.
7. D. W. 8 is an accountant in the Nizam's Charitable Trust. he produced the file containing Exs. B. 4 to B. 9, which are forms supplied to persons who apply for benefits from the trust. Exs. B. 10 to 12 are the applications. He stated that when applications are received an enquiry is made and the benefits are granted after the authorities are satisfied about the correctness of the fact mentioned. Ex. B. 13 is the report of the Equiry Officer. D. W. 9 is a member of the Legislative Council and also the Vice President of the City Congress Committee. He attested Exs. B. 5 and B. 9. He also stated that he knew Habeebulla Hussaini personally and he attested the documents at his request.
8. Sri K. F. Baba, the learned counsel for the appellants submitted that it has first to be proved that the first defendant was the lawfully wedded wife of Habeebulla Hussaini and secondly that the second defendant was the son born out of lawful wedlock. In regard to the first aspect, he further contended that not only has it to be established that there was a marriage between the first defendant and Habeebulla Hussaini but also that the marriage was valid. He submitted that as the first defendant was a Habeebulla Hussaini the marriage will not be valid unless it is proved that she was converted into Islamic faith before such marriage. He argued that there is no satisfactory evidence adduced by the respondents on all these aspects.
9. Before considering these questions, it is convenient to briefly outline the legal position, with regard to marriage and legitimacy under the Mohammedan Law, particularly with regard to Mootha Marriage, which is the form of marriage that was performed in the present case according to the respondents. In the case of a marriage under Mohammedan Law it is to be noticed that neither writing nor any religious ceremony is essential. All that is necessary is that there should be a proposal and an acceptance in the presence of witnesses. In this case we are concerned with the law applicable to Shias. Under the Shia law a marriage between a Muslim and a non-Muslim is unlawful and void, but a valid Muta Marriage can be contracted with a Kitabia, which includes a Christian or a Jew but not a Hindu. Muta Marriage is a temporary marriage as distinguished from the ordinary permanent marriage. Shia of the male sex may contract a Muta Marriage with a woman professing Mohammedan. Christian or Jewish religion or even with a woman who is a fire-worshipper but not with a woman following any other religion. It is essential to the validity of a Muta Marriage that the period of cohabitation should be fixed, though such period may even be as short as a day, and some dower should be specified. Muta Marriage does not create mutual rights of inheritance between the husband and the wife but the children conceived are legitimate and capable of inheriting from both the parents. It is dissolved ipso facto upon the expiry of the term.
10. Marriages may be established by direct proof or by indirect proof, i.e., by presumption drawn from certain factors. It may be presumed from prolonged cohabitation combined with other circumstances or from acknowledgment of legitimacy in favour of a child or the fact of the acknowledgment by the man of the woman as his wife. It is true that the presumption does not apply if the conduct of the parties is inconsistent with the relationship of husband and wife. But if there is no impediment for a lawful marriage, such presumption will be raised by the aforesaid circumstances. In Abdool Razak v. Aga Mohomed (18940 21 Ind App 56 (PC) the Privy Council observed that if the conduct of the parties were shown to be compatible with the relation of husband and wife, every presumption ought to be made in favour of the marriage when there is lengthened cohabitation. In that case, however, it was found that the conduct was incompatible with that relation and, therefore, it was held that the presumption did not apply. In Ghazanfar v. Kaniz Fatima, (1910) 37 Ind App 105 (PC), as the woman was a prostitute before the marriage, the Court refused to draw the presumption. But normally, cohabitation for a long time and living together as husband and wife would raise a presumption of marriage. As far as legitimacy of the child is concerned, it may be presumed from circumstances from which the marriage itself between its parents may be presumed. It was held in Zamin Ali v. Azizun-Nisa AIR 1933 All 329 that the statement by a deceased father that he was married to the mother is evidence of marriage from which the legitimacy of the child may be presumed. Apart from this, where paternity of a child cannot be proved by establishing a marriage between the parents, Mohemmodan Law recognises 'acknowledgment' 'as a method whereby such marriage and legitimate descent can be established as a matter of substantive law for purposes of inheritance.' This doctrine does not apply to a case where illegitimacy of the child is proved and established either because the lawful union between the parents of the child is impossible or the marriage itself being disproved. The doctrine applies only to a case where the fact of marriage is not proved, as distinguished from disproved. In other words it applies to cases of uncertainly. The acknowledgment may be express or implied. It may be presumed from the fact that the person was habitually and openly treating another as his legitimate child. In Mulla's principles of Mohamedan Law (16th Edition) in Section 344, the conditions of valid acknowledgment are set out. The acknowledgment must be made in such a way that the acknowledger meant to accept the other not only as his child but as his legitimate child. The ages of the parties must be such as to admit of the acknowledger being the father of the person acknowledged. The person acknowledged must not be the offspring of Zina, that is, adultery, incest or fornication. The person acknowledged must not be known to be the child of another man. The acknowledgment must not have been repudiated by the person acknowledged. If these conditions are satisfied, the acknowledgment raises a presumption of marriage also. In other words, the marriage also would be held to be proved and the legitimacy established.
11. Bearing these principles in mind, it has to be considered whether there is in this case sufficient evidence to establish lawful marriage of the first defendant with Habeebulla Hussaini and the legitimacy of the second defendant. There is no direct proof of the marriage which, according to the respondents' witnesses, was in the form of a Muta Marriage. Both Habeebulla Hussaini the husband and the first defendant, the wife, are dead. The other persons who speak to it merely depose that they were informed that there was such a marriage by Habeebulla Hussaini and they are not direct witnesses to that marriage. Hence the learned advocate for the respondents had necessarily to rely upon circumstances giving rise to a presumption of marriage and legitimacy.
12. In this case, apart from the oral evidence, there is considerable evidence furnished by documents. The deceased Habeebulla Hussaini was a retired employee of the Nizam's Private Force. He was drawing pension and he was also applying for maintenance for himself and his defendants from the Nizam's Charitable Trust. Exs. B. 4 to B. 14 are documents which relate to such applications. In Ex. B. 9, one of such applications the second defendant is described as the son of Habeebulla Hussaini. In Exs. B. 4 and B. 5, it is stated that Habeebulla Hussaini has one wife and three children. Apparently he was also referring to the children of the wife by the first husband as his children. Ex. B. 14 is a report of the concerned officer of the Nizam's Charitable Trust in an enquiry conducted for the purposes of satisfying themselves whether the statement made by the applicant is correct or not. It is stated therein that Habeebulla Hussaini stated before the Enquiry Officer that he had a son by name Zaheer Hussain (D. 2). These documents were produced by D. W. 8. Further, two of them Exs. B. 5 and B. 9 are attested by D. W. 9 who is a Member of the Legislative Council and the Vice-President of the City Congress Committee. He says that he knew Habeebulla Hussaini personally and he attested the document after satisfying himself about the correctness of the contents. Apart from these, Exs. X-1 to X-3 are the pay rolls in the Government College of Music and Dance, Hyderabad, where the second defendant was working from 1-4-1967 to 19-3-1969. An employee of the College (D. W. 4) produced these documents. It is true that he says that he did not make the entries and does not know the correctness of the recitals therein, but the fact remains that these documents were produced from proper custody. In these documents the second defendants fathers name was given as Habeebulla Hussaini. From these documents it is clear that Habeebulla Hussaini was acknowledging the second defendant as his legitimate son. Though the name of the first defendant is not mentioned in any of the documents, it is clear that reference to the wife is only to the 1st, as it is not the case that Habeebulla Hussaini had any other wife. The appellants relied upon Exs. X-4 to X-8 which were applications filled by the first defendant for some grant from the Nizam's Charitable Trust. In those documents she is described as the widow of Venkati. From these documents it is argued that she could not have been married to Habeebulla Hussaini, in which case he would have been mentioned as her husband. But these documents were not put to the second defendant when he deposed as D. W. 7. It is also possible that the first defendant in order to get some monetary benefit, would have preferred to call herself as the widow of Venkati rather than the wife of Habeebulla Hussaini. Having regard to these documents, considered along with the oral evidence set out earlier, I am of the view that the Court below was right in holding that Habeebulla Hussaini and the first defendant were living for a long time as man and wife and that Habeebulla Hussaini was acknowledging the second defendant as his son. The facts are in my view, sufficient to raise a presumption of marriage between Habeebulla Hussaini and the first defendant and the legitimacy of the second defendant.
13. The learned advocate for the appellant relied upon the evidence of the plaintiff's witnesses. This evidence is of a negative character, in that they merely pointed out the circumstances which would indicate that there was no valid marriage. One such circumstance which is referred to by them is that Habeebulla Hussaini was impotent and he could not have been anxious to get married or he would not have contracted a marriage. P. W. 2 stated that he enquired Habeebulla Hussaini a number of times and finally he admitted that he was unfit for marriage. But it is not proper for the Court to hold that Habeebulla Hussaini was impotent, based upon such oral evidence. In this connection it may be noticed that even in the plaint, there is no allegation that Habeebulla Hussaini was impotent and could not have contracted a valid marriage. I am, therefore, of the view that there is no satisfactory evidence in the case regarding the impotency of Habeebulla Hussaini. Further the witnesses do not appear to be reliable. P. W. 1 admits that he was not a neighbour of the deceased. He says that his house is adjacent but in a separate locality. It is impossible to understand how a house which is in a separate locality can be adjacent to the deceased's house. Similarly, while saying that Habeebulla Hussaini was impotent he said that his child's name was Zaheer Hussaini. P. W. 3 is the plaintiff himself and his evidence is naturally interested. P. W. 2 admitted that he and Habeebulla Hussaini never lived as neighbours and he did not use to visit the house of Habeebulla Hussaini.
14. Another circumstance spoken to by the plaintiff's witnesses is the plaintiff performing the funeral ceremony of Habeebulla Hussaini. On the other hand the second defendant's case is that he performed the funeral ceremony. The Court below was right in preferring the evidence of the defendants' witnesses to that of the plaintiffs witnesses.
15. Sri Baba submitted that even if all this evidence is accepted, still the marriage cannot be valid as the first defendant was a Hindu Harijan and under the Shia Law, there cannot be valid as the first defendant was a Hindu Harijan and under the Shia Law, there cannot be a valid marriage between a Muslim and a Hindu. He attacked the finding of the Court below that the first defendant had embraced Islamic faith before the marriage, as being based on no evidence. He further submitted, as has been already noticed by me, that no presumption of valid marriage can be raised. It is true that unless it is shown that the first defendant was converted into Islamic faith, there cannot be a valid marriage and even a presumption of marriage cannot be drawn under such circumstances. But in this case there is the evidence of the defendants witnesses that defendant No. 1 was converted to Islam. In this connection it must be remembered that under Mohamadan Law or religion, there is no particular ceremony or ritual for conversion. Any person who professes Mohamedan religion and acknowledges that there is but one God and Mohammad is his prophet, is a Mohammedan. It is not necessary that he should observe any particular rites or ceremonies or be an orthodox believer in the religion.
16. The learned counsel for the appellants, however, drew my attention to an admission of D. W. 7 (the second defendant) that the first defendant was buried in a Hindu graveyard and he argued that if really she was converted into Islam this would not have happened. But, in this connection it has to be noticed that after the death of Habeebulla Hussaini, the first defendant began to live with the children by her first husband. viz., Venkataswamy. Actually they were living next door in the same house. It is, therefore, not improbable that when she died, her children with whom she was staying, got her buried in a Hindu Smasanam. From that circumstance alone, it cannot be said that she was not converted into Islam. Another important circumstances that has to be noticed is that all the witnesses say that she was given a Mohammedan name and was called Hussain Bee after she was married to Habeebulla Hussaini. The plaintiffs witnesses do not deny that she was called as such. Some of them merely say that they did not know. The defendants witnesses say that in the locality both of them are known as husband and wife. If really the first defendant continued to be a Hindu and was only kept as a mistress of Habeebulla Hussaini people in the locality would not have regarded them as husband and wife.
17. Sri Baba referred to the circumstance that the marriage certificate of either Habeebulla Hussaini or even of the second defendant was not produced and stated that an adverse inference should be drawn against such non-production. He submitted that the marriage certificate of Habeebulla Hussaini would be conclusive evidence. The marriage certificate of the second defendant would contain some recital as to the name of the father of the second defendant. D. W. 7 admitted that there was such a certificate. As far as Habeebulla Hussain's marriage certificate is concerned, the marriage must have taken place long before 1930 when the second defendant was born, there being some evidence that after him another girl was born and she died. Further the evidence is that the marriage was contracted in the form of Muta marriage. In those circumstances, it is probable that the marriage certificate, if any, might not have been preserved. In this view, it is unnecessary to consider the question, on which the advocates for both sides were not agreed, whether in the olden days there used to be a marriage certificate. It is true that the second defendant marriage certificate could have been produced. But having regard to the various circumstances which have been set out by me. I am not prepared to hold against the respondents on the ground that such marriage certificate was not produced.
18. For all these reasons, I agree with the Court below that the first defendant was the lawfully wedded wife of Habeebulla Hussaini and the second defendant is his son. In their presence, the plaintiff who is the brother, is not entitled to claim any share in the property. The appeal is dismissed but in the circumstances, without costs. The Court- fee on the memorandum of appeal will be paid by the appellants.
19. Appeal dismissed.