1. This is a defendant's appeal. The plaintiff has filed a cross-objection. There is a Second Appeal NO. 507 of 1940 connected with it which we shall dispose of by a separate judgment. The plaintiff is the daughter of defendant l, Rafiqa Begam alias Kundan Jan, who is the widow of Mohammad Naqiuddin Ahmad Khan to whom she was married in the last decade of this nineteenth century the date of the marriage, however, is one of the matters in dispute between the parties. Naqiuddin Ahmad died on 17fch November 1924. The plaintiff is one of the children of this marriage. Plaintiff's case was that Kundan, Jan who was a Naik by caste was a prostitute before her marriage to her father Naqiuddin Ahmad. That at the time of her marriage she changed her religion and was known as Rafiqa Begam that after Naqiuddin Ahmad's death Mt. Rafiqa Begam alias Kundan Jan went back to her previous profession of a prostitute, was reconverted and began to live with her relations who are defendants 3 to 8. Defendant 2 Dalip Singh alias Nuruddin Ahmad, was the son of Mt. Kundan Jan alias Rafiqa Begam. Plaintiff's case was that this Dalip Singh was born previous to the nikah between her father and her mother and he was therefore illegitimate. The plaintiff was married to one Shaukat Ali who died on 2lst May 1924. There were two daughters born to the plaintiff of this marriage, one was Hasina and the other was Saida. After the death of Shaukat Ali the plaintiff with her two daughters came to the house of Naqiuddin and started living in his house. On his death, on 17th November 1924, the plaintiff with her two daughters continued to live in the same house with Kundan Jan. According to the plaintiff when her daughters grew up Mt. Kundan Jan wanted that these young girls should also be brought up in her own profession of prostitution, while the plaintiff wanted that they should be true Muslims and should be married in respectable families. There was a dispute on account of this and the elder daughter Hasina sided with her grandmother though the younger Saida was with the plaintiff and on 4th August 1935 the plaintiff and Saida were beaten and turned out of the house. Plaintiff's claim is for the recovery of certain moveable properties, valued in all at Rs. 14,707-14-0 on the ground that the properties belonged to her and she wanted that the defendants should be directed either to return to the plaintiff the ornaments and goods, etc., mentioned in list (A) or pay the price thereof which the plaintiff fixed at the figure mentioned above. The plaintiff also claimed possession of the property in mauza Aniari, mahal Surkh and a grove given in list (B) on the ground that the defendant had by fraud got from her a sale deed of the said property on 28th June 1931. The plaintiff alleged that she was not bound by the sale deed and was entitled to possession of the property and a sum of Rs. 900 as mesne profits prior to the date of the suit. The plaint was later amended by an order dated 4th February 1939 and a further relief that the defendants should be directed to hand over to the plaintiff certain papers and documents, etc., detailed in list (C) of the plaint was added. It was alleged that plaintiff's signature had been taken on certain blank papers which were included in list (c).
2. The plaint was filed on 27th July 1938 and along with the plaint the plaintiff filed an application for appointment of a Commissioner. The reason given in the application for the appointment of the Commissioner was that the plaintiff's ornaments, articles and cash were in the unlawful possession of the defendants and if the defendants came to know of the suit, then they might remove the same. It was, therefore, prayed that a Commissioner be appointed for the purpose of preparing an inventory. On the same date the learned Civil Judge of Moradabad appointed a Commissioner who was to make an inventory of the property and goods and put them in charge of a respectable person in case it was difficult to bring them into Court and put them in the Court's safe. The Commissioner went to the spot on 29th July 1938 and subsequent days, and the plaintiff's entire case is based on certain documents which are said to have been found among the papers taken possession of by the commissioner. We have to consider the question of this Commission in detail later on when we come to deal with those documents. We may however mention here that the Commissioner was not examined by either party as a witness in the case. The plaint was amended and list (c) added after this commission.
3. The defence was that the plaintiff left the house with her younger daughter of her own accord as there was a difference between her and defendant 1 about the marriage of Hasina and she did not leave the properties detailed in the plaint in the house of the defendant. It was further alleged that defendant 2, Nuruddin alias Dalip Singh, was the son of Naqiuddin Ahmad and had been born after his marriage with Kundan Jan. As regards-the sale deed, the defendants' case was that, the sale deed had been executed for proper consideration after the plaintiff had duly understood what she was doing and it was binding on the plaintiff. The other allegations in the plaint as regards defendant 1 and the other defendants were also denied. The lower Court decreed the plaintiff's suit as against defendant 1 for recovery of Rs. 10,000 as the value of moveables and ornaments mentioned in list (A) of the plaint, for recovery of landed property mentioned in list (B) of the plaint along with Rs. 435 as mesne profits and 2/llth share in the grove and for recovery of the papers actually recovered by the Commissioner from the house of defendants l and 2 and mentioned in list (C) of the plaint, this last relief being given both against defendants 1 and 2. As against the other defendants the suit was dismissed. Defendants 1 and 2 have filed this appeal, while the plaintiff has filed a cross-objection with respect to the grove which, according to the cross-objection is a part of 2 sihams of village Aniyari mentioned in list (c). The plaintiff has submitted to the dismissal of her claim to the extent of rupees 4707-14-0 mentioned in list (a).
4. The first point taken in appeal is that the finding of the Court below that Nuruddin Ahmad, appellant 2, was not the legitimate son of Naqiuddin Ahmad is wrong. It is further pleaded that in the second appeal a finding of fact has been recorded that he was the legitimate son of Naqiuddin and we are, therefore, bound by that finding. We will take up the question of legitimacy of Nuruddin first. Great reliance is placed by learned Counsel for the appellants on the treatment of Nuruddin by Naqiuddin and on the acknowledgment of legitimacy made by the latter. The leading case on the point is the decision of their Lordships of the Privy Council in Sadik Husain Khan v. Hashim Ali Khan ('16) 3 A.I.R.1916 P.C. 27 p. 661 where the decision of the Allahabad High Court in Muhammad Allahdad Khan v. Muhammad Ismail Khan ('88) 10 All. 289 was approved. It was held that in cases of uncertainty of legitimate descent an acknowledgment by the father raises a presumption of legitimacy unless the other side can prove that the boy whose paternity was acknowledged was of illegitimate descent. (After considering the evidence his Lordship proceeded.) In view of the admissions made by Naqiuddin himself and the admissions made by the plaintiff, her husband and all other members of the family, we think it will be safer to hold that there is no clear evidence as to when Mt. Rafiqa Begam alias Kundan Jan was married to Naqiuddin, and there is no clear evidence as to when Nuruddin was born. Nuruddin was examined in another case in the year 1938 and there also he gave his age as 40 years. It appears that Nuruddin himself is not a particularly intelligent specimen. In view of all the acknowledgments that we have mentioned above, it will be safer to presume that Nuruddin was the legitimate son of Naqiuddin, and we hold accordingly.
5. The next point raised by the appellants relates to the sale-deed Ex. 39 dated 28th June 1931. The plaintiff has challenged the sale deed on the ground that it was obtained from her without her knowledge and it was later on during the pendency of Suit No. 20 of 1937 that she came to know of this sale deed. It is further alleged that the property conveyed by the sale deed is worth at least Rs. 2000 and Rs. 300, the sale consideration, is totally inadequate. Learned Counsel for the plaintiff has further relied on the finding of the learned Judge that the income of the property conveyed is about Rs. 145 annually. Learned Counsel for the defendants has not seriously challenged that the valuation of the property was much more than Rs. 300. Under this sale-deed the plaintiff, Aisha Begam, and Nuruddin conveyed their interests in two sihams to Mt. Rafiqa Begam their mother. Under a sale-deed of the same date Nuruddin and Rafiqa Begam conveyed certain property to the plaintiff Aisha for Rs. 4222. This sale-deed of 28th June 1931 by which the plaintiff acquired property is not challenged by the plaintiff. We feel that there may be some connexion between these two sale-deeds which were executed on the same date. By one sale-deed the plaintiff was getting substantial property which she does not now repudiate and which she wants to keep to herself, while by the other sale-deed she transferred some share in another village for Rs. 300 along with her brother Nuruddin in favour of her mother. No point was made, however, of this fact either in this Court or in the Court below. The fact, however, remains that the plaintiff was living in the house with her mother and she had no independent advice and she was a purdahnashin woman. The sale consideration is wholly inadequate; on an income of Rs. 145 a year the property should be worth at least Rs. 2000 while it was sold for only Rs. 300. The plaintiff in her statement at page 43 stated that the sale deed was obtained from her by fraud. We do not find any cross-examination on the point on behalf of the defendants. The lower Court held that the plaintiff was not bound by the sale-deed, and in view of what we have stated above we cannot differ from that finding.
6. The next question for consideration is whether Mt. Kundan Jan alias Rafiqa Begam retained the plaintiff's ornaments and moveables mentioned in list (A) of the plaint and if any part of the property was so retained by her what was the value thereof. The lower Court has held in favour of the plaintiff that the goods mentioned in list (A) were retained by the defendant but has held that the valuation of Rs. 14,707-14-0 was an exaggerated valuation and has made the defendant liable to pay a sum of Rs. 10,000 in lieu of those goods. The plaintiff has submitted to the dismissal of her claim to the extent of rupees 4,707-14-0 under this head. The defendant in the appeal challenges the finding that any part of the property belonging to the plaintiff was retained by the defendant. It is further argued on behalf of the defendant appellant that even the valuation put on it by the Court below was exaggerated and there was no basis for fixing the valuation, at the sum of Rs. 10,000. It is on or about 4th August 1935 that the plaintiff is alleged to have left the defendant's house. On 12th August 1935 she filed a complaint before the District Magistrate of Muradabad. The record of that case has been weeded out as is clear from the report of the Naib Record Keeper, Collectorate Moradabad, dated 12th September 1938 at p. 260 of our paper book. Hazari Lal, record keeper, was examined in Court and he stated that the record was weeded out after one year. In the complaint the plaintiff is said to have given a list of the properties that were left in the house of the defendant.
7. To fill in the gap in the evidence the plaintiff has again relied on certain papers which are said to have been discovered at the time by the Commissioner. We shall deal with this commission in detail later. It is said that one of the papers found by the Commissioner in one of the boxes is Ex. 16 at p. 192. It purports to be a mutilated certified copy of an application. There is no list attached to it. In this paper it is mentioned that the plaintiff who was then the applicant had filed a petition before the Superintendent of Police, Moradabad, on 26th December 1934, but no investigations were made in connexion with that petition. In this document it is mentioned that all the ornaments and household goods belonging to the petitioner which were given to her by her father and also by her husband had been taken away by the petitioner's mother and her brother Nuruddin. There is no mention made in this complaint that Kundan Jan wanted her daughters to follow her own profession, but the suggestion is that she wanted the plaintiff to follow that profession but the plaintiff refused and was on that account subjected to tyranny. A list of the ornaments, etc., was said to have been attached to the complaint. The value of this property was said to be Rs. 23,248-13-0. An uncertified copy of the same complaint was also recovered by the Commissioner and that is printed at page 191. We do not know in whose handwriting this copy is, as there is no evidence on the point. A third uncertified copy is at page 189 and is Ex. 43. It has been argued by Mr. Peare Lal Banerji-learned counsel for the defendant- that the plaintiff has deliberately suppressed the list that was attached to her complaint filed before the Collector on 12th August 1935. As a result of the complaint, the District Magistrate directed the tahsildar to make a report. An uncertified copy of the said report has been filed and is printed at pages 196 and 197. The tahsildar who made the report was not produced. The original record having been weeded out there is no chance of knowing what the report of the tahsildar was. Learned Counsel for the defendant-appellant has argued that this uncertified copy had not been proved and was not admissible in evidence. We asked learned Counsel for the plaintiff as to how he said that this document had been proved and he had to admit that there was no evidence on the record to prove it. The said report was therefore wrongly admitted in evidence and must be excluded.
8. Great reliance is placed on behalf of the plaintiff on a list Ex. 15 printed at p. 185. The case of the plaintiff is that two days before she was turned out the defendant made a list of the ornaments and goods belonging to the plaintiff which were put in her possession and while she was making the list the plaintiff's daughter Saida Begam made a similar list in a copy book. This list Ex. 15 at page 185 was said to have been recovered among the papers of the defendant by the Commissioner. (His Lordship considered the evidence and proceeded.) We have no hesitation in rejecting the evidence of the plaintiff and Saida Begam on the point of the preparation of these lists. Kundan Jan has denied that the list was in her handwriting or she ever prepared it and in view of that denial and in view of all the circumstances some of which we have stated above, we are of the opinion that this list has been fabricated for the purposes of this case. (His Lordship again considered the evidence and proceeded.) We have already held as regards Ex. 15, the list which is said to have been in the handwriting of the defendant Kundan Jan, that we are not satisfied that it was prepared as alleged by the plaintiff, nor are we satisfied that it was in the defendant's handwriting. Great reliance was placed by learned Counsel appearing for the plaintiff on the fact that this list was recovered by the Commissioner from the house of the defendant; strong reliance on this circumstance was also placed by the Court below. We have carefully examined these proceedings before the Commissioner. As we have already said, the Commissioner was not examined by either party or by the Court. The plaintiff's original claim in the plaint consisted only of the properties mentioned in lists (A) and (B). List (A) contained cash, ornaments and other moveables, while list (B) contained zamindari property. The plaintiff filed her plaint on 27th July 1938, and she made an application on the same date that if the defendants came to know of the suit they would remove the ornaments, articles and cash and it would be difficult then for the plaintiff to recover those articles. The Court appointed Mr. Prithi Nath Khanna, vakil, to make a list of such ornaments, articles, and cash as were mentioned in list (a) of the plaint and put them in charge of a respectable person in case it was difficult to bring the same into Court and put them in the iron safe of the Court. It is therefore surprising that the Commissioner instead of carrying out the duties entrusted to him started taking into his possession papers relating to which he had received no orders. He went to the house of the defendant on 29th July 1938, and pasted slips bearing his signature on various articles. He continued to visit the house till 31st July and barring a few articles of clothes and utensils, etc., he mostly took into his possession papers about which he had no orders. On 5th August 1938, the plaintiff made an application that when the Commissioner reached the spot only a few things of small value and some papers were recovered and the plaintiff said to the Commissioner that the papers should be filed in Court as they would support the plaintiff's ease, but the Commissioner took some papers with him to his house and locked the rest in the defendant's house and the application was that the Commissioner should be asked to bring all the papers immediately into Court. The order on this application is at p. 17 that the Commissioner was to comply at once. This is a most curious procedure not warranted by any provision of the Civil Procedure Code. It is not necessary for us to give in detail the various applications and objections that were filed by the parties, but the result of all of them was that the papers were brought into Court and kept there. Ultimately the Commissioner was directed to prepare a list of the papers in the presence of parties or their agents. This took several days and all the disputed papers on which reliance has been placed on behalf of the plaintiff, several of whom we have no doubt in our mind, were forged, are said to have been recovered from the papers that had been brought into Court from the defendant's house. It is not necessary for us to burden this judgment further by giving a detailed discussion of the various objections filed by the defendant or the various applications filed on behalf of the plaintiff. All that we need point out is that there is no provision in the Civil Procedure Code which entitles a plaintiff in a case of this kind, when he files a suit, to have a search warrant taken from the civil Court and with the help of that get hold of all the papers from the defendant's house and then have them inspected one by one and choose such of them as the plaintiff considers may be of assistance to him in proving his case. In the absence of any evidence given by the Commissioner or by an officer of the Court, we are not prepared to assume that it was impossible for the plaintiff or for anybody on her behalf to have planted the papers among the papers said to have been thus recovered. (His Lordship again considered the evidence and proceeded.) The result, therefore, is that we allow this appeal in part and hold that the plaintiff has failed to prove that the property in list (a) was left by her at the house of the defendant and that the plaintiff was entitled to a return of the same or to a payment of compensation for the same and we dismiss her claim in respect of the property in list (A). As regards the property in list (b) the plaintiff is entitled to her legal share in the 2 sihams out of 11 sihams, under the Mahomedan law in mouza Aniari alias Alinagar, pargana Amroha together with the share in the above to the extent it appertained to the share belonging to her. We declare that defendant 2 Nuruddin Ahmad is the legitimate son of his father Naqiuddin Ahmad Khan. We further hold that the plaintiff is not bound by the sale deed dated 28th June 1931, executed by her in favour of her mother. She is, however, not entitled to any mesne profits. The plaintiff is entitled to possession of the deed of wakf executed by Zargham Ali Khan and others in favour of Mohammad Shaukat Ali Khan dated 8th June 1917, the original sale deed executed by Nuruddin Ahmad Khan in favour of Mt. Aisha Begam dated 11th January 1925, and any blank stamps or papers bearing the thumb impression of the plaintiff which may have been found by the Commissioner among the papers of the defendant. She is not entitled to the rest of the papers mentioned in list (c) of the plaint. As regards costs, the greater portion of plaintiff's case has failed in view of that and in view of the way that the case was conducted on behalf of the plaintiff in the Court below and various papers were filed, some of which we have found to be forged, we direct that the plaintiff shall bear her own costs and pay half the costs of the defendants, defendants l and 2 being entitled to only one set of costs.
9. There is a cross-objection filed on behalf of the plaintiff. She claimed that the whole of the grove appertained to 2 sihams of village Anihari. No materials have been placed before us which would entitle us to disagree with the finding recorded by the Court below that the grove appertained to the entire 11 sihams. We see no force in the cross-objection and we dismiss it with costs.