1. The main question in this appeal is whether or not Sikandar Khan is a legitimate son of Ghulam Hussain Khan who died at the age of 80 in the year 1867. This Ghulam Hussain Khan served as a sawar in a regiment in the Deccan. He brought with him from the Deccan as did other sawars, a girl of the name of Piria. In these proceedings she is described as a slave girl. But she was really not a slave. Most likely with other Pathan girls she was carried off as the subine women of old by the victorious Rajputs. Be this as it may, she was not a slave girl in the ordinary sense of the word. She died many years ago, and it is clear upon the evidence that Sikandar Khan is her son by Ghulam Hussain Khan. The real question is whether Musammat Piria was acknowledged by Ghulam Hussain to be his lawful wife and Sikandar Khan as his lawful son. Ghulam Hussain had a Rajput wife named Musammat Bhana, and by her a son named Khadim Hussain Khan and a daughter named Fahimunnissa. It is proved beyond question that Musammat Piria and her son Sikandar Khan lived continuously in the house of Ghulam Hussain Khan during his life and after his death continued so to live. That Sikandar Khan was a son of Ghulam Hussain Khan is clearly established by the evidence. In fact the plaintiff in his plaint describes him as an illegitimate son of Ghulam Hussian Khan, but in the course of the appeal even this has been denied. It is clear that the plaintiff, when he instituted the suit, believed that Sikandar Khan was the son of Ghulam Hussain Khan. The plaintiff-appellant relies upon three facts as strongly supporting his contention that Sikandar Khan was not recognized or treated as a lawful son of Ghulam Hussain, and to these we shall shortly refer. In the first place on the death of Ghulam Hussain his son Khadim Hussain was alone recorded as owner of his property. This, no doubt, is an important matter when we are considering whether or not Sikandar Khan was recognised as a legitimate son of Ghulam Hussain. But it is to be observed that the Rajputs became in the time of the Emperor Aurangzeb converts to Muhammadanism and it is not unlikely that though they became Muhammadans they still retained some of their Hindu notions and among others the notion of the joint family. Even ordinary Muhammadan families not unfrequently have ideas of undivided property which have been borrowed from their Hindu fellow countrymen. So we do not think it surprising if the eldest son of Ghulam Hussain by the Rajput wife was allowed by the younger son by his Pathan wife to be recorded in the place of his father, he continuing to live in the family house and to be supported out of the family property. The sister Fahimunnissa was entitled to a share in Ghulam Hussain's property and yet she was not recorded as owner of such share. The members of the family lived together as a joint family, the younger brother and the sister being content to leave the nominal ownership to the eldest son. Too much weight, therefore, is not to be attached to the fact that Khadim Hussain Khan was alone recorded as the owner of his father's estate. On the death of Khadim Hussain, Sikandar Khan immediately applied for mutation of names and this is not to be overlooked.
2. Another fact relied on by the appellant's learned advocate was that in a plaint which was filed by Khadim Hussain and Musammat Fahimmunissa against Karam Bibi, wife of Khoda Bakhsh Khan, a member of the family and another for recovery of a part of the family property, Sikandar Khan was not made a party to the suit, nor was any mention made of him in the pedigree which was put forward by the plaintiffs in that litigation. It is said that if Sikandar Khan had been a legitimate son of Ghulam Hussain, his name would have appeared in the litigation. This, no doubt, is a matter can which the plaintiff is entitled to rely. But there may have been reasons for which the other plaintiffs, the sister and brother, ignored him in that litigation. It may be that they wished to exclude him from participation in the family property. But, however the omission of his name may be open to explanation, there is no doubt that this plaint furnishes some evidence that Khadim Hussain and Fahimunnissa did not regard him as a legitimate son of his father. The third matter on which the learned Advocate for the appellant relies is an agreement of the 23rd April 1889. On the death, as we have said, of Khadim Hussain, Sikandar Khan applied for mutation of names in his favour, but his application was refused. He, thereupon, without delay instituted a suit against the widow of Khadim Hussain for the recovery of his share of the property which had been recorded in the name of Khadim Hussain. This suit was compromised. The agreement to which we have referred purports to have been signed by Sikandar Khan, Bhambhu Khan and another. Sikandar Khan, who is in the document described as the son of Ghulam Hussain Khan, agreed to accept the village of Muhammadbegpur as his share of the property claimed by him for his 'support and maintenance during his life-time' and he relinquished his claim to the residue of the property. In the agreement it is stated that after the death of Musammat Latifunnissa, the heirs of her husband, namely, Bhambhu Khan and others, whoever they may be, shall be the owners thereof, and that Latifunnissa shall remain in possession in lieu of her dower and her share in the estate of her husband. Now it is contended that if Sikandar Khan really believed himself to be the legitimate son of Ghulam Hussain, he would not have accepted one village as his share of his father's estate. The value of the village in question may be gathered from a comparison of the amount payable as revenue in respect of the whole property. The revenue of Muhammadbegpur is only Rs. 82 while the revenue of the whole of the property is Rs. 600. We may here point out that this agreement was not acted upon in its entirety. The terms of the compromise on which a decree was passed are to be found in an application which was filed by Sikandar Khan and Musammat Latifunnissa, dated the 23rd of March. 1890. The salt was compromised on the terms that the village of Muhammadbegpur and also the inner enclosure of a house in the village of Daryapur should belong to the plaintiff for ever and that the rest of the property should be possessed by the defendant Latifunnissa. A decree was accordingly passed on the 24th of March, 1890, embodying the terms of settlement as appearing in this application. The agreement of the 23rd of April, 1889, did not, therefore, form the basis of the decree in the suit brought by Sikandar Khan against Latifunnissa. It is difficult to understand how it came about that Sikandar Khan accepted the terms mentioned in these documents. It may be that as he was out of possession he had not the means of carrying on protracted litigation. It may be that he felt the difficulty of proving the marriage of his father and mother, Musammat Piria, which had taken place many years before. Whatever may be the reasons for his having accepted a share of the estate very much less than that to which he would, as a legitimate son, have been entitled, the fact that he did so furnishes strength to the argument advanced by the learned Advocate for the appellant. We have now to consider the documents and oral evidence which have been relied on in support of the claim of Sikandar Khan. The learned District Judge has attached great importance to three documents to which we shall now shortly refer. The first of these is a petition which purports to have been presented to the Court by Ghulam Hussain Khan on the 7th of November, 1866, in reference to the jama of the village Dariapur Dayalpur which had been fixed at the then recent settlement The owners of this village considered the jama excessive and were unwilling to accept it, but becoming apprehensive that the property might be settled with others, they agreed to accept the jama and hold themselves liable for the payment of it. In this petition the petitioner states that he has been seriously ill for four years, that he cannot move, that Sikandar Khan (whom he describes as his son) will attend the Court and that if Sikandar Khan attends the Court under a mukhtarnama executed by the petitioner and signs the petition, the petitioner will accept it. This petition was received by post and it is contended on behalf of the appellant that there is no evidence by whom it was posted and that consequently the Court cannot attach any weight to it. We find, however, that on the subsequent day, namely the 8th of November 1866, Bhambhu Khan and Sikandar Khan, who is described as the son of Ghulam Hussain Khan, presented a petition to the Court and represented in it that they were willing to accept the jama proposed by the Settlement Officer, and they prayed that their signatures might be taken to the jama 'by way of favour inasmuch as the whole of the petitioner's family depends upon the same village for support.' On the 12th of November 1866, an application was made by persons representing themselves to be the lambardars of the village Daryapur and in that application they agreed to accept the jama and to pay it by instalments. This document is signed by Bhambhu Khan, by Sikandar Khan as son of Ghulam Hussain Khan and by other parties. The Court acted upon these documents and on the 24th of November 1866 passed an order that the case be shelved as the petition in reference to the jama had already been signed by the lambardars. It is clear from those documents that Bhambhu Khan recognized and treated Sikandar Khan as the son of Ghulam Hussain Khan, and it may also be fairly inferred from them that the Court was satisfied that Sikandar Khan was the legitimate son of Ghulam Husain Khan and acted for his father as such. If this had not been the case it is unlikely that the Court would have accepted his signature to the petition accepting the jama as fixed by the Settlement Officer. It may also be inferred that Ghulam Hussain regarded Sikandar Khan as his legitimate son. In addition to these documents we have evidence of apparently respectable witnesses who are connected with the family and who deposed that Sikandar Khan wag regarded and trusted by Ghulam Hussain Khan as a legitimate son and his mother Musammat Piria a lawful wife. We are disposed to think that the learned District Judge did not attach sufficient weight to the evidence of these witnesses. The oral evidence adduced on behalf of the appellant is of little worth. We think on a perusal of it that it justified, so; far as regards these witnesses, the observation made by the learned District Judge that they were prepared to support their theory 'with an absolute disregard of truth.' Was then the treatment of Sikandar Khan by his father tantamount to an acknowledgment of the marriage of Musammat Piria and of the legitimacy of her son by her? In the case of Khajah Hidayut Oollah v. Raijan Khanum 3 M.I.A. 295 Their Lordships of the Privy Council, after referring to a statement of Mr. Macnaghten in his work on Muhammadan Law observe:
3. 'The effect of that appears to be that where a child has been born to a father of a mother, where there has been not a mere casual concubinage but a more permanent connection and where there is no insurmountable obstacle to such a marriage, then according to the Muhammadan Law the presumption is in favour of such marriage having taken place.' Their Lordships of the Privy Council, in dealing with a similar question in the case of Ashrufood Dowlah Ahmed Hossein Khan Bahadur v. Hyder Hossein Khan 11 M.I.A. 94; 7 W.R. 1 (P.C.) referring to the earlier case, observed: 'The co-habitation alluded to in that judgment was continued, it was proved to have preceded conception and to have been between a man and woman co-habiting together as a man and wife and having that repute before the conception commenced and the case decided that not co-habitation simply and birth, but that co-habitation and birth with treatment tantamount to acknowledgment sufficed to prove legitimacy.' Before then we can hold that Sikandar Khan was a lawful son of Ghulam Hussain Khan, we must be satisfied that there is evidence on the record from which it may be properly inferred that there was not merely co-habitation between Ghulam Hussain and Musammat Piria as man and wife and that Sikandar Khan was their offspring, but also that there was treatment of Sikandar Khan by his father such as was tantamount to an acknowledgment of the fact of the marriage of Ghulam Hussain and Musammat Piria and of the legitimacy of Sikandar Khan. The case is by no means free from difficulty. Having given our careful consideration to the arguments which have been advanced and to all the evidence on the record, we think that there is evidence to justify the finding of the Court below. We think that the requirements of law as laid down by their Lordships of the Privy Council have been satisfied, and holding this view, we must dismiss the appeal. We, therefore, dismiss the appeal with one set of costs including fees in this Court on the higher scale.