1. One Ghulam Ghaus Khan resided at Jhajhar, zila Bulandshahr, and owned zemindari and other, property in that district. Accord--rag to evidence on the record, he was twice married, and he also had a concubine. The latter survived him, whilst both of his wives pre-deceased him. He died on the 6th November 1879, and left several legitimate and illegitimate children, the former being by his second wife, Moti Begam, and, the latter by the concubine Musammat Nanhi.
2. Almost immediately after the death of Ghulam Ghaus, proceedings for mutation of names were taken in the Revenue Court. Ml the persons then claiming to be the heirs of Ghulam Ghaus took part in those proceedings, and on the 15th March 1880, the Deputy Collector, Lachman Singh, decided the case in favour of Ismail Khan, son of Ghulam Ghaus Khan, and directed that his name should be substituted for that of his father in the register of mutations. In consequence of this order a suit was, on the 4th May 1880, brought in the Court of the Judge of Meerut against Ismail Khan, who alleged that he was, and was admitted to be, the legitimate and eldest son of Ghulam Ghaus and Moti Begam.
3. The plaintiffs were eight persons--namely, the three full sisters of Ismail Khan, Nanhi, styling herself Nanhi Begam, widow of Ghulam Ghaus, and her three sons and one daughter, calling themselves the lawful issue of Ghulam Ghaus Khan. These plaintiffs claimed their respective shares in the property of Ghulam Ghaus deceased. The case was tried by the Subordinate Judge of Meerut. The defendant, as is reported on page 724 I.L.R. 3 All. 'set up as a defence to this suit that Nanhi Begam was not the lawful wife of Ghulam Ghaus Khan, and her children by him were illegitimate, and therefore her claim and that of such children to inherit Ghulam Ghaus Khan's estate was not maintainable; and that by the custom of the family, which the will of Ghulam Ghaus Khan recognised and affirmed, the eldest son succeeded, and females were excluded from succession, and therefore the claim of the other plaintiffs, the daughters of Ghulam Ghaus Khan, was not maintainable. The Court of First Instance fixed the following issues, amongst others, for trial:' Is Nanhi Begam the married wife of Ghulam Ghaus Khan or his mistress? Is she, and are her children, entitled to inherit? Are the daughters of Ghulam Ghaus Khan entitled to inherit, or are females in the family of Ghulam Ghaus Khan not entitled to inherit, and the eldest son alone succeeds and other members of the family are excluded from inheritance? How far can the will be acted on? The Court found on the evidence in the case that the children of Nanhi Begam by Ghulam Ghaus Khan had been uniformly treated by their father and his lawful daughters and son as legitimate, and held, relying on Khajooroonissa v. Bowshan Jehan I.L.R. 2 Cal. 184 : L.R. 3 Ind. Ap. 291 and the Privy Council decision therein cited; that it must be presumed that Nanhi Begam was the lawful wife of Ghulam Ghaus Khan, and her children by him legitimate. It also found that there was no such custom of succession in the family of Ghulam Ghaus Khan as was set up by the defendant; and it held, relying on Khajooroonissa v. Bowshan Jehan that, according to Muhammadan law, a devise of property could not be made to one heir to the exclusion of the other heirs without their consent; and that therefore the plaintiffs could not be excluded from inheriting by the will of Ghulam Ghaus Khan in the defendant's favour. It accordingly gave the plaintiffs a decree for their legal shares of the estate of Ghulam Ghaus Khan. The defendant appealed to the High Court. On his behalf it was contended on the evidence that Nanhi Begam had not been treated by Ghulam Ghaus Khan and the members of the family as his wife, or her children by him as legitimate, and that the custom of succession in the family set up by him was proved.'
4. A Bench of this Court (Spankie and Straight, JJ.), after referring to the evidence on the record and certain rulings of the Privy Council, observed: 'We therefore cannot but conclude that Nahhi was not the wife of Ghulam Ghaus Khan, and that the children were born illegitimate, and have never been legitimated by treatment in the house of their father as legitimate, and on this ground the suit of Nanhi and her children must fail.' The learned Judges also held that the custom alleged by the defendant-appellant of primogeniture, and the exclusion of the females and other heirs from inheritance, was established against the defendant; that this plea failing, 'the heirship of the three legitimate daughters of Ghulam Ghaus Khan cannot be disputed;' and the learned Judges consequently modified the decree of the first Court, dismissing the claim of Nanhi Begam and her children, and giving the remaining three plaintiffs, the full sisters of the defendant, a decree for the shares to which they were entitled under the Muhammadan law.
5. The original suit was instituted on the 4th May 1880, and was decided on the 14th July 1880. The appeal was filed on the 18th August 1880, and was disposed of on the 21st April 1881. During the whole time that the above-mentioned proceedings lasted, Allahdad Khan never applied to be made a party^ and he did not bring his present suit until the 13th May 1884, i.e, not until after the expiration of three years from the disposal of the above-mentioned appeal, and of four and a half years from the date of the death of Ghulam Ghaus Khan.
6. He now alleges that he and the defendants Ismail, Musamrnat Kdayat-un-nissa, Karamat-un-nissa, and Barkat-un-nissa, 'are the children of Ghulam Ghaus Khan by Musamrnat Moti Begam, his lawful wife;' that cases and proceedings which he alludes to have taken place in his absence and without his knowledge, and therefore he and the other plaintiff also, as explained in para. 7 of the plaint sue for his share of the property left by Ghulam Ghaus Khan. The defendants replied that the plaintiff was not the son of Ghulam Ghaus Khan; that he was not born in wedlock; that he came with Moti Begam to Ghulam Ghaus Khan's house; that under the Muhammadan law he did not possess any right in the estate left by Ghulam Ghaus Khan; that his allegations were entirely false; that' 'all the proceedings taken in the revenue, the criminal, and the civil cases by the defendants Nos. 2, 3, and 4 against defendant No. 1, were taken with the knowledge and information of the plaintiff and in his presence, and he conducted the proceedings in the said cases as a karinda (agent) of defendant No. 1, against defendants Nos. 2, 3, and 4, without advancing his own right against the defendants in any Court; that had plaintiff been the eldest son of Ghulam Ghaus Khan, his name would surely have been recorded in the village administration paper, verified by Ghulam Ghaus Khan; that, as a general rule, any son or daughter brought by a wife with her to the house of her second husband is called by the latter his son or daughter: therefore if Ghulam Ghaus Khan has on some occasion called plaintiff No. 1 his son, it shall not make the said plaintiff actually his son.' The Subordinate Judge appears to have fully considered the evidence that has been adduced on either side, as also the law and the rulings referred to, and he has found that Allahdad Khan is not a son of Ghulam Ghaus Khan; that Ghulam Ghaus never really acknowledged him to be his son; that Allahdad consequently has no right to inherit any portion of the estate of Ghulam Ghaus; and the Subordinate Judge has dismissed the suit with costs.
7. The plaintiffs have taken numerous grounds of appeal against this decision. They still contend that Allahdad is the eldest and legitimate son of Ghulam Ghaus and Moti Begam, having been born in wedlock, and that even if he Was not born in wedlock, he has been legitimated by Ghulam Ghaus Khan's admission and treatment of him, and that the judgment of the lower Court is opposed to the evidence, the law, and the rulings of the Privy Council and of every High Court. I concur generally in the opinion that the Subordinate Judge has expressed with regard to the evidence for the plaintiffs.
8. I agree with him in thinking that Mr. Young, who was examined by commission, has, to the best of his belief, deposed with entire truthfulness, but nevertheless I consider that Mr. Young's evidence is of very little, if any, value. Mr. Young's evidence relates to matters that occurred about 24 years previously, and amounts to this,--that when he was at Bulandshahr in 1860, GhuJam Ghaus Khan brought Allahdad Khan, who was then a young man of 20 years of age, to see him, and brought him, so far as Mr. Young remembers, 'as his son,' and afterwards, in 1861 or 1862, sent him to Banda, where Mr. Young was Superintendent of Police, and Mr. Young deposes: 'I gave him the appointment of head constable of police on the strength of his being the son of the above (Ghulam Ghaus Khan). I have always considered Allahdad Khan to be his son, being sent to me as such, as far as I can remember.' Mr. Young is apparently by far the roost credible of the plaintiff's witnesses, and great stress has been laid upon what he has stated; but from his evidence it is not clear that Ghulam Ghaus Khan informed Mr. Young that Allahdad Khan was his own son; and that Mr. Young's knowledge with respect to Ghulam Ghaus Khan's family was extremely limited is apparent from his evidence in cross-exarnination. Moreover, as Ghulam Ghaus Khan had in 1857 saved the life of Mr. Young, it is natural to suppose that on his application, Mr. Young would gladly have conferred the appointment of head constable upon Allahdad Khan, provided that the young man was qualified for the post, and it is not probable that Mr. Young would, under such circumstances, have hesitated to comply with Ghulam Ghaus Khan's request, even if he was then aware that Allahdad was not Ghulam Ghaus Khan's own son, but his step-son. From the evidence on the record, I am satisfied that Allahdad Khan was the son of Moti Begam, and that he was born a year or two before Moti Begam was married to Ghulam Ghaus Khan. Prior to that marriage Moti was a prostitute, and there is no proof who was the father of Allahdad. There is no evidence that Moti cohabited with Ghulam Ghaus Khan before their marriage. Had she done so and borne a child to him, it is improbable that the marriage would have been sp long delayed, and if Ghulam Ghaus believed Allahdad to be his son, he surely, after he had married that son's mother, would have taken effective steps to legitimate his son, and to make it widely known that Allahdad was his eldest son and an heir to his property. He did not do so. Allahdad was from about his second year at Jhajhar, and he apparently lived sometimes with his maternal grandmother and uncle, but more frequently at the house of his mother and her husband. He was thus brought up with his half-brothers and sisters, the legitimate children of Ghulam Ghaus Khan and Moti Begam; and as his own father's name was unknown, as he came to Ghulam Ghaus Khan's house in his infancy, was the son of Ghulam Ghaus Khan's wife, and the brother of Ghulam Ghaus Khan's children, he doubtless came to be regarded by Ghulam Ghaus as a step-son, and to be called his son, much in the same way as a European, who marries a widow with young children, will ordinarily call those children his children, and be termed by them their father. If Ghulam Ghaus did, under the circumstances above mentioned, speak of Allahdad as his son, he apparently did not thereby act contrary to the custom prevailing amongst Muhammadans.
9. The few letters and other documents that have been filed by the plaintiffs, and are specially relied upon by them, bear dates corresponding with the years 1861 and 1862. In none of them is Allahdad called the eldest son of Ghulam Ghaus or his own son and heir. They were written at a time when Allahdad Khan was employed as a head constable in the district of Banda, and the power-of-attorney was executed with the special object of enabling Ghulam Ghaus to sue for money due to Allahdad, and which the latter, owing to his being in Government service in a distant district, would not otherwise have been able to realize.
10. In accordance with the practice, a man in executing documents or making his deposition states the name of his father. Had Allahdad, in the general power-of-attorney executed by him in favour of Ghulam Ghaus Khan, or in the evidence of the latter person, been described as the son of an unknown father, it would have reflected upon Moti Begam, the lately-deceased mother of Allahdad and wife of Ghulam Ghaus Khan; it would have revived a scandal that had perhaps been forgotten after many years of married life, and would have been highly unpleasant to both men, and for these reasons Ghulam Ghaus Khan was probably in the document, as in ordinary conversation, styled the father of Allahdad Khan. Allahdad was apparently 30 years of age when Ghulam Ghaus Khan died: but with the exception of the few papers written 17 or 18 years before his death, and under the special circumstances mentioned above, there is no documentary evidence to support the plaintiff's allegations. On the other hand, if the wajib-ul-arz, dated the 17th December 1870, is, as I think, admissible in evidence, it furnishes the strongest proof against Allahdad's pretensions. The extract from the wajib-ul-arz, which has been admitted by the lower Court, was admitted in evidence by another Subordinate Judge in the suit of 1880, and was considered by a Bench of this Court in the first appeal above referred to as having been disposed of on the 21st April 1881. The wajib-ul-arz appears to have been duly attested and signed by Raja Lachman Singh, a Deputy Collector in charge of the settlement office at Bulandshahr, under Rule 49 of rules issued with the sanction of the Governor-General in Council under Section 257 of Act XIX of 1873. The wajib-ul-arz was produced before Raja Lachman Singh, in the presence of the mukhtar of Ghulam Ghaus Khan, of the patwari of his village, and of the kanungo, and I see no reason whatever to doubt that its contents were in accordance with the wishes and instructions of Ghulam Ghaus Khan; and this being the case, it is obvious that in September 1870, that is at a time when there was not alleged to have been any difference between Ghulam Ghaus and Allahdad, Ghulam Ghaus Khan caused an entry to be made in the settlement record that Muhammad Ismail Khan was his eldest son; that he would be the owner and manager of the whole estate; that the two other sons of Ghulam Ghaus were minors; and that they both would, during their minority and after attaining majority, live jointly with Ismail Khan and under his control.
11. Allahdad was at that time 30 years of age, but he is neither mentioned as a son nor referred to in any way whatever. This wajib-ul-arz was prepared, attested, and signed nine years before Ghulam Ghaus died; its contents, if Allahdad was the eldest son, were very startling, untrue, and unjust. They must have been well known to many persons, and could not well be concealed from the eldest son, who had been disinherited and ignored without any apparent reason. But this document was never disputed during the nine years that Ghulam Ghaus lived after its execution.
12. There has been no consecutive course of treatment of Allahdad by Ghulam Ghaus during a number of years, tending to show that Ghulam Ghaus considered him the son of his loins and an heir of his estate; on the contrary, the acts of Ghulam Ghaus, from the time of his marriage with Moti Begam up to the date of his death, seem to me to prove that Ghulam Ghaus did not regard Allahdad as a son who was eventually to succeed to a share of the ancestral estate. Allahdad, if the son of Ghulam Ghaus Khan, was his eldest son. The Bais of Jhajhar, with a property valued at two lakhs of rupees, would not be likely to allow his own eldest son and heir to take the post of head constable of police and go away to a distant district; but it is intelligible that he would be glad to obtain an appointment of that kind for his wife's illegitimate son, and consider it a suitable provision for the young man. The following appears to be established facts: that Allahdad was not born in wedlock; that he was the son of Moti by an unknown father; that his mother was at the time of his birth, and up to the time that she married Ghulam Ghaus, a prostitute; that Allahdad did not go to Ghulam Ghaus Khan's village to reside there until he was one or two years of age or more; and that when there he lived sometimes with his maternal grandmother and uncle, who apparently were persons of low position, and sometimes with his mother and her husband; that in 1861, when he was about 21 years of age, Ghulam Ghaus Khan obtained for him the post of head constable of police in the district of Banda, and he was thus sent to a considerable distance from the town of Jhajhar; that in the course of about eighteen months he was dismissed from his appointment; that he subsequently for several years tried to obtain his reinstatement, but without success; that he returned to Jhajhar and constantly resided there with his wife and family; that he admittedly was therein October 1879, that is, only a few days before Ghulam Ghaus Khan died; and that he and his wife did not finally leave that town until towards the end of 1883; that Ghulam Ghuas Khan made no allusion to him in the wajib-ul-arz of 1870, and styled Ismail Khan his eldest son; and although there was no variance between Ghulam Ghaus and Allahdad prior to 1879, Ghulam Ghaus had, for at least two years previous to 1879, made over the management of his estate to Ismail Khan, who admittedly was his legitimate son, had never taken service, and always remained at home.
13. It is conceded that there was not any ill-feeling between Allahdad and Ghulam Ghaus prior to 1879. The former deposed: 'At the beginning of 1879 there was some variance between myself and Ghulam Ghaus Khan. He died on the 6th November 1879. The matter of difference was that my sister Fidayat-un-nissa, who was a widow, was about marrying a second time, to which Ghulam Ghaus and Ismail Khan had consented, but I had not been consulted. There was no difference before then.' There is no reliable evidence that there was, even in 1879, any difference between Ghulam Ghaus and Allahdad, and if the latter was the eldest son and was on good terms with his father, there is no apparent reason why his consent to his sister's re-marriage should not have been asked for equally with that of Ismail, his younger brother. His admission that he was not consulted tells against the position he sets up for himself.
14. Were Allahdad either the legitimate or legitimated son of Ghulam Ghaus Khan, it is most highly improbable that Ghulam Ghaus Khan and his other sons and daughters, legitimate and illegitimate, should all, without any sufficient reason, have acted towards him in the way they are shown to have done. It is proved that Allahdad not only knew about the mutation proceedings in the Revenue Court and the suit of 1880 in the civil Court, but that he also used to attend upon Ismail Khan's pleader on behalf of Ismail Khan during the pendency of those cases, and his acts and omissions for many years past tend to support the allegations of the defendants-respondents and to prove the falseness of his claim. From the evidence and the whole circumstances of the case it is, I think, palpable that Allahdad was not the son of Ghulam Ghaus Khan; that he was not legitimated by Ghulam Ghaus, and that he well knew that he was, at the highest, nothing more than Ghulam Ghaus Khan's step-son, had never been called his son except by courtesy, and had no right to any share in his (Ghulam Ghaus Khan's) property. This case is, in my opinion, very different to the cases referred to by the learned Counsel for the appellants, and is not governed by any of the Privy Council rulings. The most recant judgment of their Lordships of the Privy Council on this branch of the Muhammadan law that has come to my notice was delivered in December 1883, in the case of Sadukat Hossein v. Mahomed Yusuf I.L.R. 10 Cal. 663 : L.R. 11 Ind. Ap. 31. In that judgment, on page 36, the following passage occurs: 'The Judge of the primary Court who saw and who heard the witnesses and the Judges of the Supreme Court who examined into the evidence, afterwards concur in opinion that there was sufficient evidence of the acknowledgment by Amir Hossein of Selim as his son, from which an inference is fairly to be deduced that the father intended to recognise him and give him the status of a son capable of inheriting. Upon that point both the Courts come to one conclusion, and that conclusion their Lordships adopt. They think that the status of Selim as son has been sufficiently established by recognition so as to enable him to claim as heir.'
15. I see nothing to lead me to believe that Ghulam Ghaus Khan ever regarded Allahdad in any other light than that of a step-son; and applying the principle contained in the above remarks of their Lordships of the Privy Council to the present case, I find that there is no sufficient evidence of the acknowledgment by Ghulam Ghaus Khan of Allahdad Khan as his son, from which an inference is fairly to be deduced that Ghulam Ghaus Khan ever intended to recognise him and give him the status of a son capable of inheriting, and I would therefore dismiss the appeal with costs.
16. The evidence in this case proves, in my opinion, that the plaintiff-appellant, Allahdad Khan, was the illegitimate son of Ghulam Ghaus Khan. I also think, upon the evidence, that he was born before the marriage of Ghulam Ghaus Khan with Moti Begam, and therefore it has been established that he was in the inception, at all events, an illegitimate son of his father. Then there is the material circumstance that it is proved by evidence, the truth of which is beyond doubt, that upon several occasions, in 1862, Ghulam Ghaus Khan did at that time acknowledge the plaintiff Allahdad Khan to be his son in fact. I refer in particular to the letter from Ghulam Ghaus Khan to Allahdad Khan, dated the 15th April 1861, in which the latter is directed to prepare a general power-of-attorney, describing the former as his father. I take it as proved, therefore, first, that Allahdad Khan was, in fact, Ghulam Ghaus Khan's illegitimate son, and secondly, Ghulam Ghaus Khan acknowledged him as such on many occasions after his marriage with Moti Begam. The case thus resolves itself into a puro question of law, namely: What, according to the Muhammadan law, is the effect of an acknowledgment by a Muhammadan that a particular person, born of the acknowledger's wife before marriage, is his son? How does such an acknowledgment affect the status of the person in reference to whom it is made? The answer to this question appears to me to depend upon the effect of several decisions of the Privy Council, and if the decisions were precisely in unison, there would be no difficulty in the matter. At first sight, however, they appear to be contradictory, and I have found it far from easy to arrive at a definite conclusion as to the rule of law which they were intended to express. The first of the rulings I refer to is in the case of Ashrufood Dowlah Ahmed Hossein Khan v. Hyder Hossein Khan 11 Moo. I.A. 94. The parties in that case belonged to the Shia sect of Muhammadans. The respondent claimed to be the son of Nawab Ameenood Dowlah, but the appellants alleged that he was illegitimate. He, however, relied on a moottah (or irregular) marriage with his mother with the Nawab, and his consequent birth in wedlock, and insisted that the Nawab had in his life-time acknowledged him as his son; and he further. relied on a decision of the Civil Judge at Lucknow in a summary suit for the administration of goods of the Nawab, under the Acts Nos. XIX and XX of 1841 and X of 1851, by which he had obtained a certificate of joint administration and title with the appellants, subject to their right to bring a suit to prove his illegitimacy. The appellants denied the mootlah marriage and the declaration and acknowledgment by the Nawab of the respondent as his son, and set up and relied on a deed of disclaimer and repudiation of the respondent, executed by the Nawab in his lifetime, denying that the respondent was his son, which deed was proved in the suit.' In that case, therefore, the respondent was the Nawab's son, and a question arose as to his legitimacy, and whether, supposing him to be illegitimate, he had been acknowledged by his father, and the status of a legitimate son was conferred on him. The judgment of the Privy Council was delivered by Sir James COLVILB. He said: 'The appellants brought their suit in the Civil Court at Lucknow on the 6th June 1861. The object of the suit, as it appears from the plaint, was to be relieved from the effects of the summary decree and to establish the respondent's illegitimacy, so that the proceeding went on in a somewhat inverted order, arising from a misunderstanding of the object of those Acts. The plea is not set out at length, but an abstract of it is to be found in Mr. Eraser's judgment. The issues, as also the finding, are carefully framed and evidence an accurate knowledge of the Muhammadan law as to legitimacy. The first, second, and third issues, are alone necessary to be stated here, as nothing which affects the decision of this appeal turns upon the fourth issue, which relates merely to the share, if legitimate, and a claim to maintenance, if illegitimate. The first, second, and third issues are as follows: First, did Nawab Ameenood Dowlah (deceased) contract moottah with defendant's mother before or after his birth? Second, has the deed of repudiation (dated 23rd Suffar 1272 Hijri) the effect of cancelling previous acknowledgment of defendant's legitimacy, if such were made? Third, if defendant be not a legitimate son, is he an illegitimate son of deceased? It was admitted on the pleadings that a moottah marriage at some time had been contracted between the late Vizier and the respondent's mother, but the plaintiff stated in effect that the conception and birth of the respondent preceded that marriage. The plea distinctly stated the marriage, though without assigning a date to it, and alleged the legitimacy of the respondent as a child born of that marriage. The existence of moottah marriage therefore, at some time, was not contested, and the first issue, which by implication admits a marriage, is framed correctly on that state of the pleadings. The second issue, it may be observed, is also very correctly framed. It substitutes for the ambiguous word 'sonship,' which might include an illegitimate son, the word 'legitimacy,' and uses the word 'acknowledgment' in its legal sense, under the Muhammadan law, of acknowledgment of antecedent right established by the acknowledgment on the acknowledger, that is, in the sense of a recognition, not simply of sonship, but of legitimacy as a son.'
17. From this it is obvious that in 1866, when the judgment of the Privy Council in that case was delivered, their Lordships were of opinion that an acknowledgment of mere sonship was not sufficient; that the question was not whether the person concerned was acknowledged to be the son of the acknowledger, but whether the father, by acknowledgment, had given him the status of a legitimate son. This is different from the question whether the father had acknowledged that the person was in fact his son, that being a preliminary matter. I gather, especially from the third issue mentioned, that the Privy Council were at that time of opinion that a Muhammadan could not make another person's son his own, but that all ha could do was to give his illegitimate Son the status of legitimacy, if he desired to do so.
18. Now, in the present case, it is clear from the facts proved that Ghulam Ghaus Khan, though he intended to acknowledge Allahdad Khan, as his annm fact, never intended to give him the status of a legitimate son, because he did not treat him as his legitimate son, and the young man's conduct, after his father's death, shows that be never understood his father to have meant to give him the status of a legitimate son, or to have done more than acknowledge the fact of his sonship.
19. The next decision of the Privy Council on this subjeot was in the case of Muhammad Azmat Ali Khan v. Lalli Begam I.L.R. 8 Cal. 422 : L.R. 9 Ind. Ap. 8 decided in 1881 and it appears to me that the sole question on the determination of which the present case depends, is whether this second judgment of the Privy Council has altered the law laid down in the first, so as to establish the proposition that a mare acknowledgment of the fact of sonship confers the status of legitimacy. In delivering their Lordships' judgment Sir Montague Smith said: 'The only question which remains on this part of the case is as to the effect of these acknowledgments. Both the Judges of the Chief Court, who have given learned and careful judgments, have gone very fully into the authorities upon this question. Their Lordships, however, are relieved from a discussion of those authorities, inasmuch as the rule of Muhammadan law has not been disputed at the Bar, namely, that the acknowledgment and recognition of children by a Muhammadan as his sons gives them the status of sons capable of inheriting as legitimate sons, unless certain conditions exist, which do not occur in this case,'
20. Now the conditions here referred to were not such as exist in the case before us. They were conditions showing that it was impossible that the person claiming the rights of a son should be, in fact, the son of the person whom he alleged to be his father. What was held was that an acknowledgment of children by a Muhammadan as his sons gave them the status of legitimacy. I am unable to avoid the conclusion that this is what was held by the Privy Council in that case.
21. Now this decision is binding on us, unless it has been overruled by the Privy Council itself. The only other ruling of their Lordships on the subject is in Sadakat Hossein v. Mahomed Yusuf I.L.R. 10 Cal. 663 : L.R. 11 Ind. Ap. 31. In delivering judgment, Lord Fitzgerald quoted the observations of Sir Montague Smith upon which I have commented to the effect that 'the acknowledgment and recognition of children by a Muhammadan as his sons gives them the status of sons capable of inheriting as legitimate sons,' and said: 'Their Lordships do not intend at all to depart from that rule, or to throw any doubt upon it.' So that the proposition laid down by Sir Montague Smith is distinctly re-affirmed. Lord Fitzgerald then continues: 'The Judge of the primary Court, who saw and who heard the witnesses, and the Judges of the Supreme Court who examined into the evidence, afterwards concur in opinion that there was sufficient evidence of the acknowledgment by Amir Hossein of Selim as his son, from which an inference is fairly to be deduced that the father intended to recognise him and give him the status of a son capable of inheriting. Upon that point both the Courts come to one conclusion and that conclusion their Lordships adopt. They think that the status of Selim as son has been especially established by recognition so as to enable him to claim as heir.'
22. This latter passage does to some extent appear to dilute the proposition stated by Sir Montague Smith, but as the first passage distinctly and in terms affirms that proposition, I am of opinion that it carries the plaintiff before us the whole way that is necessary for the establishment of his case, Under these circumstances I am of opinion that the judgment of the first Court should be reversed and the plaintiff's claim allowed, but as there is a difference of opinion in this Court, our decree must be in accordance with that of the Court below. I must add, in reference to the question of law which have discussed, that I have given expression to what appears to me to be the law as laid down in the books, but that the law so laid down is not, in my opinion, in accordance with the custom of the people of this country.