1. In this case the two defendants are the brother and nephew of the late Raja Muhammad Salamat Khan of Azamgarh, who died on April 3rd, 1912. He had made an arrangement in his lifetime intended to secure the succession of his nephew, the younger defendant, to his title and the bulk of his estates, this arrangement seems to have been given effect to, with the sanction of Government, as regards the title. The plaintiff, Musammat Shabban Bibi, claims to be the sole surviving widow of the late Raja; she brings this suit to recover her dower debt stated at Rs. 40,000 and claims at the same time subsidiary relief by way of declaration as to the property from which this dower-debt is recoverable. She reserves her claim to possession of one-fourth of the estate, as an heir of the deceased under the Muhammadan Law, for a separate litigation. The defendants replied that the plaintiff was never married to Raja Muhammad Salamat Khan, and consequently no dower was ever fixed for her, or could be due to her; she was merely a dancing girl who had scoured the favour of the late Raja and had been 'kept in a separate house' by him. They pleaded further that, as long ago as February 22nd, 1836, Raja Muhammad Salamat Khan had made full provision for the plaintiff by executing in her favour a deed of gift conveying to her his proprietary rights in village Salatnatgarh, of which the plaintiff was still in possession and enjoyment. At the same time, the Raja had taken the precaution of obtaining from the plaintiff a deed under which the latter formally relinquished all claims against the estate of Raja Muhammad Salamat Khan. With respect to this deed of relinquishment, the plaintiff's rejoinder was that she had never executed it, or at any rate had never set her name to it with any knowledge or understanding of its contents. It has also been contended, with reference to the terms of this document, that it has in any case no bearing on the claim for dower debt, whatever might be its effect on a claim to a share in the inheritance. The learned Subordinate Judge framed a number of issues, the majority of which he did not find it necessary to decide. On the main question in dispute be has held that 'it has not been proved that the plaintiff is the married wife of the deceased Raja Muhammad Salamat Khan.' With regard to the deed of relinquishment of February 22nd, 1886, he has held that it would not, on its terms, operate to bar a suit for dower supposing, of course, that the plaintiff were a lawfully married wife and that a dower had been fixed for her and remained unpaid. He finds, however, that the plaintiff did execute this document 'after hearing and understanding it,' but declines to determine a technical objection as to the validity of its registration. He holds that the plaintiff would not, in any event, be entitled to obtain in this suit a declaration as to the property from which her dower-debt, if proved, could be realized.
2. In her memorandum of appeal to this Court the plaintiff challenges all the findings of the Court below which are against her; but, of course, the main questions before us are whether the plaintiff was or was not married to Raja Muhammad Salamat Khan, and, if so, what was the amount of her dower-debt. The plaintiff attempted to prove her case on both these points by direct evidence. She was herself examined, on commission, and she caused to be examined, also on commission, two witnesses, Nawab Sbujayat Ali Khan and Sayyid Izhar-ud-din Ahmad, residents of Patna; these depose to a marriage at Patna in or about the year 1862 A.D. between the plaintiff and Raja Muhammad Salamat Khan at which a sum of Rs. 40,000 was fixed as the dower-debt of the former. The plaintiff also relies on a mass of circumstantial evidence as proving cohabitation between herself and the late Raja, ostensibly on the footing of lawful marriage; she also undertakes in this connection to prove acknowledgments on the part of the said Raja, both express and by implication, of her status as his wife. The defendants on their side could scarcely be expected to produce much in the way of direct evidence in proof of their negation of the marriage; they impugned the veracity of the plaintiff's witnesses and suggested explanations of the circumstantial evidence relied on by the latter. They also put forward certain circumstances as supporting their contention that the position of the plaintiff in the late Raja's household was rather that of a favoured mistress or concubine than of a wedded wife. On one point, however, and one of considerable importance, they joined issue with the plaintiff in the most direct fashion and produced a body of evidence directly contradiction that of the plaintiff and of her witnesses. The plaintiff's account of herself is that she is the daughter of one Sadiq Husain Khan, originally a resident of Delhi, who removed (at some period not very clearly specified) to the city of Patna. She was married at about the age of eighteen to one Abad Husain, a Saiyid by race, and lived with him for a little more than two years, when he died, leaving her with an infant son, who received the name of Nanhe Khan. Some three or four years after the death of her first husband, her parents arranged for her second marriage with Raja Muhammed Salamat Khan. This took place at Patna, but the Raja took her home with him to his ancestral Fort at Azamgarh, introduced her there as his honourable wife and she lived with him as such for very nearly fifty years up to the time of the Raja's death, She makes a particular point of the kindly treatment of her son Nanhe Khan by his step father, Raja Muhammad Salamat Khan, and of the affection evinced by the latter for Afzal Khan, son of the said Nanhe Khan. On the other hand, the case for the defendants is that the plaintiff is the daughter of a disreputable woman of the name of Chhuttan, who was originally a Brahmini, but was converted to Muhammadanism, adopted the profession of a prostitute and lived for many years in Azamgarh in the keeping of one Nanak Bakhsh (a Hindu, apparently a Khatri by caste) to whom she bore a number of children, including the plaintiff. The latter first attracted the notice of Raja Muhammad Salamat Khan when she was appearing in public as a dancing girl and was presumably also following the less reputable branch of her mother's profession. There was an illicit connection between the plaintiff and the Raja which continued for some years before the Raja took this favoured mistress to live with him in his Fort. The conflict of evidence on this point has a twofold importance. The witnesses Shujayat Ali Khan and Izharuddin Ahmad have committed themselves to the support of the plaintiff's own account of herself, her family and her antecedents; if on these matters they have deliberately elected to give evidence which is false in fact, which they probably know to be false and which they most certainly do not know to be true, the Court must necessarily find it very difficult to accept their testimony as sufficient to prove that the plaintiff's dower-debt really amounted to Rs. 40,000. In the second plea, much of the circumstantial evidence relied upon by the plaintiff takes on different colours and is susceptible of divergent interpretation according as the Court is satisfied that the plaintiff first met Raja Muhammad Salamat Khan as a young widow of a respectable family and unblemished antecedents or as a dancing girl and the illegitimate daughter of a prostitute.
3. Before dealing with the evidence on this point, I wish to make a few preliminary remarks as to the manner in which the case for the plaintiff appellant was argued in this Court. I do not think the case could have been more delicately and skilfully handled than it was by Mr. O'Conor for the appellant. His opening struck me as a very subtle piece of advocacy. He went straight to the main issue of marriage or concubinage; and proceeded to argue his client's case almost entirely on the circumstantial evidence. I think I am not doing him an injustice when I say that it was only under some pressure from the Court that he even read to us the evidence of Shujayat Ali Khan and Izharuddin Ahmad at all. On the question of the dower-debt, he practically asked us to assume that a verdict in favour of the plaintiff must follow, as it were automatically, upon a finding that the marriage was proved. He laid stress on the fact that the defendants, denying that there had ever been any marriage at all, were of necessity precluded from setting up any alternative sum as the amount of the dower debt. He put it to us that the plaintiff's evidence on this point was the only evidence we have to go upon and might be said to hold the field. If I am not mistaken, he went so far. as to claim that the finding of the trial Court was in his favour on this point. I have thought it necessary to lay stress on this point. I have thought it necessary to lay stress on this presentation of the case for the appellant in order to repudiate it emphatically and to explain my reasons for approaching the consideration of the evidence on totally different lines. The decision of the Court below requires to be appreciated as a whole. In finding against the plaintiff on the question of marriage the learned Subordinate Judge has necessarily rejected the evidence of Shujayat Ali Khan and Izharuddin Ahmad and has disbelieved the plaintiff's sworn statement as to the' circumstances of her wedding ceremony and the fixing, of the dower debt. He has expressed himself a little clumsily in recording his finding on the issue as to the dower-debt; but what he says amounts in reality to no more than this, that if he had believed Shujayat Ali Khan and Izharuddin Ahmad about the marriage, he could have given no valid reason for disbelieving them as to the amount of the dower-debt. His finding is in substance and effect against the plaintiff on both points. Now, in spite of Mr. O'Conor's ingenious advocacy, it is after all sufficiently obvious that a careful examination of the circumstantial evidence might lead the Court to the conclusion that there must have been, at sometime or other, a lawful marriage between Raja Muhammad Salamat Khan and the plaintiff, without such a finding enhancing in the very slightest degree the credit of the witnesses Shujayat Ali Khan and Izharuddin Ahmad. The Court might feel quite certain that the marriage took place considerably later than the year 1862 A.D., that it did not take place at Patna and that these witnesses were not present at the ceremony. To put the point quite bluntly, Mr. O'Conor's circumstantial evidence may or may not satisfy the Court that there must have bee a a marriage; but it can scarcely be said that it even begins to prove the amount of the dower-debt. The claim before us is one for dower debt, and not one for a share in the inheritance as widow, of the late Raja. There is no presumption in favour of a sum of Rs. 40,000; the plaintiff does not say that Raja Muhammad Salamat Khan always fixed his wife's dowry at this amount, or that he did so as a special act of favour towards herself. What she says is that in the Very respectable family from which she came the females were never given in marriage unless the bridegroom consented to a dower-debt of Rs. 40,000. The Court will believe, or disbelieve her on this point according as it accepts or rejects her account of her own antecedents generally. On the other side, the defendants have preferred evidence, which I see no reason to distrust, that the dower debt of Raja Muhammad Salamat Khan's first wife was Rs. 5,000 and that in their family this was the amount which the bridegroom ordinarily consented to give. I do not think this commits them to any admission that the plaintiff, if married to the late Raja at all, must have been married for a dowry of Rs. 5,000; they deny both the marriage and the dowry, and it is quite conceivable that a gentleman like the Raja of Azamgarh might marry a favourite mistress, a former dancing girl and prostitute, without fixing the dower-debt at the sum customary in his family in the case of an ordinary bride from a family of good position and repute.
4. I propose, therefore, in the first instance, to take up and discuss the evidence on the question of the plaintiff's parentage and antecedents. From this I can pass on to estimate the credibility of the witnesses Shujayat Ali Khan and Izharuddin Ahmadi and to come to a finding as to whether it is proved that the plaintiff's dower debt was fixed at Rs. 40,000. When this question has been disposed of, it will be time enough to consider whether any further finding is necessary to the decision of this appeal.
5. The account which Musammat Sbabban Bibi gives of herself has been already indicated. If her statement stood alone, it would be open to comment on at least three points. About the migration of her family from Delhi to Patna the plaintiff was vagus and self-contradictory; she seemed not to be sure herself whether it was her father or her father's father who first came to Patna. This might be excusable enough in an old lady of eighty; but it so happens that more than a year before the date of Shabban Bibi's examination the defendants had pressed for definite details as to the plaintiff's case regarding her parentage and history. They were given certain names in reply, and were told definitely that the plaintiff's father was a resident of a certain Mohalla of the city of Patna; nothing was said about any migration from Delhi. One is left with a certain suspicion that the story of this migration was introduced at a later stage to frustrate the result of the inquiries which the defendants had in the meantime been making at Patna. It is certainly unfortunate for the plaintiff that she should have contradicted herself on the precise question of this migration and that she should have been unable to name any surviving relative of her father or of her first husband. Secondly, it seems to me difficult to read the plaintiff's account of the manner in which her marriage with Raja Muhammad Salamat Khan came about and not feel dissatisfied and suspicious of the good faith of the story told. On a fair comparison of dates it would seem that Shabban Bibi must have been just about twenty-five years of age at the time of her alleged marriage with the Raja at Patna. She was living there at her father's house, the young widow with a child four years old or more. On her own showing, she had had singularly little to do with her first husband, Saiyid Abad Husain, and I should have liked some further explanation as to why that gentleman's family took no further interest in his widow, what became of the dower debt of Rs. 40,000 fixed at the time of this marriage and so on. What chiefly strikes me, however, is that I should like to know how Raja Muhammad Salamat Khan came to know of the existence of this eligible young widow, how the question of a marriage between them was first mooted and how Shabban Bibi's consent was obtained. The plaintiff admits that she does not know what connection Raja Muhammad Salamat Khan had with Patna. She does not know if he ever visited her father's house, but she remembers having heard that correspondence was going on between the Raja and her father. She deposes:--'I do not know the contents of the letters, but I heard that letters were received from the Raja Sahib. When the day for marriage was fixed, I heard that the marriage had been settled with the Raja Sahib.' I cannot persuade myself to believe that this is the way in which the marriage of a widow of twenty-five is arranged, the family of the first husband ignored and the lady herself offered no option in the matter and only told about it when the very date of the proposed marriage had already been settled. Thirdly, the defendants succeeded in obtaining from the plaintiff a number of admissions which go far to support their case. The plaintiff deposed that her father had a mistress or concubine whom she calls 'Chhutkan.' This woman he kept for eight years or so in a separate house; but eventually she 'became displeased' with him and went away to Azamgarh where she lived with 'a man named Nanak Bakhsh.' To this Nanak Bakhsh she bore two sons and a daughter, whom the plaintiff calls Hashmat Ali, Babar Ali and Masuma These people visited Shabban Bibi while she was at the Fort as the wife of the Raja and the latter took Hashmat Ali and Babar Ali into his service This curious story is not improved in cross-examination. The plaintiff represents herself as asking the Raja, 'Has Chhutkan come here?' (meaning to Azamgarh), and on his returning an affirmative answer, receiving his permission for Chhutkan to visit her at the Fort. On the plaintiff's version of the facts, I cannot understand her interest in this runaway mistress of her father's or how she could come to speak to the Raja about Chhutkan' as if she were naming a person necessarily known to both of them, or why the Raja should befriend the family of this disreputable woman merely because she had once been the mistress of his wife's father, especially when she had quarrelled with him and run away from his keeping. For corroboration of her story as to her parentage and antecedents the plaintiff has to rely entirely on the evidence of the two Patna witnesses already mentioned. Far and away the most reputable and satisfactory witness on her side on the question of marriage is the Pleader, Shah Salimullah (P. 4 A et seq.); but he knows nothing of her antecedents. I have to discuss these two witnesses more in detail presently, but it may be said at once that on the question of Shabban Bibi's parentage and antecedents the witness Shujayat Ali Khan palpably broke down. He began by committing himself to a detailed support of all the plaintiff's assertion^ professing throughout a first hand knowledge of the family of Sadiq Husain and was deposing to his own presence at the first, as well as at the second, marriage of the plaintiff. In cross-examination he committed himself to the following statements. He (the deponent) had never been to Patna in his life until he came there on the occasion of his first marriage; it was then that he settled down in the house of the father of the lady whom he married in the Diwan Mohalia of Patna city. Shabban Bibi's marriage with Raja Muhammad Salamat Khan took place 'nearly a year after' the aforesaid first marriage of the deponent, and four or four and a half years after the Mutiny i.e., in 1361-2 A.D. Therefore, this witness first came to Patna. about 1830 A.D, Now, it is an essential part of the plaintiff's case that Shabban Bibi's two marriages were separated by an interval of at least five years, and that her alleged first marriage with Saiyid Abad Husain took place before the Mutiny; it cannot be dated later than 1856 A.D. It follows that this witness cannot have been present at the plaintiff's marriage with Abad Husain, in that the plaintiff had been a widow for at least two years when the witness first came to Patna, and that he can have had little or no first hand knowledge of the facts to which he had cheerfully sworn in examination-in-chief. I really think that if Nawab Shujayat Ali Khan had been undergoing examination in open Court, in a suit tried with the aid of a Jury, the defendant's Counsel might well have shrugged his shoulders, glanced at the Jury and sat down, as soon as his cross examination had reduced the witness' evidence to the hopeless tangle in which it stands at about the bottom of page 20A of our printed record. I am confident that he would have done so, if not at this point, then about one page further on, when he had tied up the witness into another hopeless knot over the question of the age of the plaintiff's child by her first husband. The witness Izharuddin Ahmad, being a permanent resident of Patna, was not liable to attack on these lines. The question of the general credibility of this witness I reserve for discussion at a later stage: for the present the position I arrive at is that the plaintiff's account of her parentage and antecedents rests upon her own testimony, plus that of this one witness, Izharuddin Ahmad, another witness on the same point having palpably broken down, and the plaintiffs evidence being liable to the comments already made.
6. In turning to the defendants' evidence on this point, I may say at once that they have, in my opinion, done their case a good deal of harm by want of candour on one question of detail. I take it that some one has been frightening them about the inference of lawful marriage which the Court might draw from long continued and exclusive cohabitation, they have accordingly made up their minds to refuse to admit that there was ever any exclusive cohabitation, in the strict sense of these words, between the plaintiff and the late Raja. They asked the Court to believe that Shabban Bibi was a light of love of Raja Muhammad Salama Khan in the days when she followed the profession of a dancing girl and common prostitute, and that the Raja only received her into his house and made provision for her there, out of pity, at a time when the lady and himself were so advanced in years and in such a declining state of health that there could be no question of sexual intercourse between them. The theory involves many improbabilities and cannot be fitted into the established facts of the case. It has compelled the defendants to speak of Shabban Bibi as now about a hundred years old, whereas the date given in the passport at page 46 A fits in very well with the rest of the evidence and fixes the date of Shabban Bibi's birth at about 1837 A.D. I have no doubt the lady herself was pretty near the mark in speaking of herself as 'a little below eighty years of age', when she was examined in the month of July 1915, This is all of a piece with another error committed by the defendants, and sufficiently exposed in the judgment under appeal, in putting forward another lady (said to be long since deceased) as the first permanent mistress or concubine of Raja Muhammad Salamat Khan. It is unfortunate that the defendants should not have elected to be perfectly candid and straightforward in the presentation of their case; but after making every reasonable allowance for these considerations, I am satisfied that they have produced a very formidable body of evidence as to the parentage and antecedents of Musammat Shabban Bibi. The defendant Babu Khaliq Shah deposes that he knew Musammat Chhuttan as the kept woman of Nanak Bakhsh, Khatri, living in a certain quarter of the town of Azamgarh. This woman had two sons and two daughters besides the plaintiff; their names he gives as Babar Ali (alias Babban),Hashmat Ali (or Hashmat), Masuma (also called Mamman) and Hamidan (alias Zubaida). He professes to remember the plaintiff, Shabban Bibi, as an ordinary dancing girl, appearing in public entertainments at which he was present. He says she attracted the notice of Raja Muhammad Salamat Khan somewhere between the years 1861 to 1865 A.D. between them for ten or twelve years and that the 'Raja finally received the woman into his Fort and assigned her quarters there, under circumstances already suggested. He gives a mass of details about Ghhuttan's children, and especially about her son Babban, many of which are borne out in a striking manner by evidence presently to be noticed. At a late stage of the argument in our Court it was made matter for strong criticism against the deponent that he propounded no theory as to the parentage of the plaintiff's son Nanhe Khan; what strikes me as really significant on this point is that he was not asked a single question on the subject in the course of a lengthy oross-examination. The defendants caused to be examined on commission the widow of another brother of Raja Muhammad Salamat Khan, named Sakina Bibi. She says that the plaintiff was to her knowledge the daughter of Musammat Chhuttan and that she and her mother were professional dancing girls and prostitutes, when the late Raja made her acquaintance and eventually brought her into his Fort and assigned her quarters there. She says Nanhe Khan came with his mother, and was at that time about eight years of age. Of course, this witness asserts that Shabban Bibi was never received by the other ladies of the family on the footing of a lawful wife; but I do not attach much importance to this part of her evidence. She has stultified herself by professing ignorance on the subject of the plaintiff's journey to Mecca; and I should not be much surprised to learn that a certain amount of reserve had marked the social intercourse between an ex-dancing girl and the other ladies of the household, even though the former might have sueceeded in wheedling the Raja into a marriage. The other oral evidence for the defendants on this point consists of the depositions of Sayyid Zair Husain, son inlaw of the elder defendant; of a household servant named Baqridee and an ex servant named Sabir Khan; of Sharif Khan, a nephew of Raja Muhammad Salamat Khan's first wife; of Sheikh Bakhtawar, a cloth merchant of Azamgarh city, and of Mathura Parsad Singh, a land-holder of the neighbourhood. Some of this evidence is obviously partial, of the statements of the various witnesses are no doubt open to criticism; but I am bound to say it seems to me to constitute, as a whole, a formidable body of evidence in support of the propositions that the plaintiff Shabban Bibi lived for sometime in Azamgarh as the daughter of Musammat Chhuttan, and that she herself had danced in public before Raja Muhammad Salamat Khan withdrew her into the seclusion of his Zenana. The cross examination of Mathura Prasad Singh, for instance, elicited nothing calculated to shake his testimony on these specific points; the appellant's Counsel was reduced to making the most of a somewhat remarkable, admission by the witness at the end of his cross-examination, to the effect that he had been fined once or twice in connection with murder and fishing forcibly'. In the absence of further details regarding these curiously asserted and inadequately punished crimes, I cannot say that the witness stands discredited in my estimation by the admission. It so happens, however, that the defendants are able to produce documentary evidence as to statements made, long before the commencement of the present dispute, by a person, since deceased, who undoubtedly possessed special means of knowledge as to the matters in question. It has been Stated that this woman Chhuttan had a son by Nanak Bakhsh called Babar Ali or Babban. Incidentally, I note a document printed at pages 54 and 55R, which shows beyond doubt that in the year 1906 this man described himself as 'Sheikh Babban' in certain proceedings before the Revenue Courts, and that his mother's name was entered in certain village papers with the appellation 'Tawaif' quite frankly added as a description of her profession, When Shabban Bibi in the course of her examination stated that she did not know that Babar Ali was also called Babban, I am confident that she was not speaking the truth and her want of candour on this point impresses me unfavourably. Now it appears that this Babar Ali or Babban married a woman of the name of Sakina, and that in the year 1877 there was a scandal in connection with the alleged abduction of this Sakina by the servants of the Raja of Jaunpur, Babar Ali deposed that the woman was seized while going along the streets in a closed palanquin, that the abduction took place close to Raja Salamat Ali Khan's house and that Nanhe Khan (the son of the plaintiff of whom we hear so much in the evidence) was one of the eye-witnesses and was himself wounded in an attempt to rescue the woman. It is clear that the accused in the case made it part of their defence that this Sakina was no more than a common prostitute, and they cross-examined Babar Ali severely as to his own parentage and antecedents. He had to admit that his mother (Chhuttan) was not married to his father and he gives us the interesting details that she was originally of the Brahman caste, but was converted to Muhammadanism before becoming the mistress of Nanak Bakhsh. I attach no particular importance to the fact that he denied that she had ever been a professional prostitute, a man may be excused for stretching the truth a bit in defence of his own mother's character. The really interesting part of Babban's statement is to be found where he comes to speak about' his sister. He says he had three sisters of whom only one was alive in October 1877, the date of his deposition. Two of these sisters he names as 'Masuma' and 'Zubaida' and alleges that they were married into respectable families. Then he goes on:
My third sister's name is Shabban She is married to Raja Salamat Shah. Nanhe Khan is Shabban's son. She was married 22 or 23 years ago. Nanhe Khan was not born then.
7. It must be remembered that this remarkable statement was made in a case in which this same Nanhe Khan was being put forward as the principal witness for the deponent, and in connection with an affair of which Raja Muhammad Salamat Khan cannot possibly have been ignorant. The pleadings and evidence in the present suit make it quite certain that Shabban Bibi was not married to the Raja as early as 1854 5 A.D., yet this date is approximately that given by the plaintiff and her witnesses for her alleged first marriage. No later date could be given in a case in which it was proposed to produce Nanhe Khan before the Court, but it could be contradicted by the man's apparent age. Nor does Babban say in so many words that Nanhe Khan was the son of Raja Muhammad Salamat Khan, still less that he was his heir presumptive, born in lawful wedlook. Nevertheless, he does swear that Shabban Bibi is his own sister, that she is married to Raja Muhammad Salamat Khan, and that this 'marriage' took place before the birth of Nanhe Khan.
9. Now as regards this question of the parentage of Nanhe Khan, I am afraid of saying either too much or too little. It is no one's case in this suit that he was the son of Raja Muhammad Salamat Khan; and it is quite certain that he was not born to the said Raja in lawful wedlook. Yet, in the discussion of various items of evidence in this case, all sorts of arguments were addressed to us in which the question of the parentage of Nanhe Khan was indirectly involved. Amongst the items of circumstantial evidence relied upon on behalf of the appellant, a good many were concerned with the late Raja's treatment of this Nanhe Khan and also of Afzsal Khan, son of the said Nanhe Khan. Both these men were allowed to arrogate to themselves the designation of Babu', commonly used in this family for the younger sons of the house, as, for instance, the first defendant himself. There are letters on the record in which Raja Muhammad Salamat Khan displays a remarkable fondness for Afzal Khan as a young child; and it is proved that as this young man grew up, the late Raja went out of his way to push him forward into positions of responsibility and public dignity. From all this we are asked by the appellant to infer, not merely that she herself must have been the lawful wife of the Raja, but that Nanhe Khan must have been born to her in lawful wedlook by her marriage with a respectable gentleman whom she calls Saiyid Abad Husain. Now, I am quite satisfied that the second of these inferences is wholly excluded by any fair consideration of the weight of the evidence. The direct oral testimony on behalf of the defendants as to the parentage and antecedents of Musmmat Shabban Bibi far outweighs the evidence of that lady herself and of her witness Izharuddin Ahmad, and all the circumstantial evidence is against the plaintiff. I would almost go so far' as to say that, if there were nothing else in the case, I should be prepared unhesitatingly to act on my firm belief that 'Nanhe Khan' is an impossible name for any legitimate son of 'Saiyid Abad Husain.' The name, on the face of it, claims a Pathan origin, inconsistent with the alleged 'Saiyid' parentage. Moreover, if Shabban Bibi had borne Nanhe Khan in lawful wedlook to a respectable Saiyid gentleman, there was no earthly reason why Babar Ali should not have said so in October 1877, instead of venturing upon an audacious falsehood as to the date of his sister Shabban's 'marriage' with Raja Muhammad Salamat Khan. It follows, that there must be some other explanation of the late Raja's attitude towards Nanhe Khan and Afzal Khan, not based upon the respectability of Nanhe Khan's parentage. That explanation, in face of the reticence observed by both parties, cannot be given with certainty; I can do no more than venture on a suggestion in summing up what I hold to be the established facts on this part of the case.
10. I am quite satisfied that the plaintiff was the daughter of Musammat Chhuttan, the mistress of Nanak Bakhsh and mother of Babar Ali ailas Babban, the lady frankly described as a professional prostitute in the village papers. It does not follow that her father was Nanak Bakhsh; indeed, I incline to the opinion that the plaintiff has correctly given her own father's name, the difference being that she was born to Sadiq Husain Khan of his mistress Chhuttan, and not of his lawful wife, if he had one. I hold it proved that the plaintiff was living in Azamgarh as the daughter of Musammat Chhuttan, while the latter was there under the protection of Nanak Bakhsh, Khatri, and carrying on the profession of a dancing girl. I accept as true the evidence for the defendants that Shabban Bibi was trained as a dancing girl and first came under the notice of Raja Muhammad Salamat Khan while appearing in public in this capacity. I have no doubt that the date of this may be fixed, on the strength of Babar Ali's statement, as about 1854 A.D. I am satisfied that the connection between the plaintiff and Raja Muhammad Salamat Khan was in its inception nothing more than ordinary illicit intercourse between the Raja and a dancing girl who had taken his fancy. I take it that Nanhe Khan was born under circumstances which made it impossible for anyone to feel quite certain as to his paternity; reading between the lines of the evidence I strongly suspect that Raja Muhammad Salamat Khan came gradually to believe that the child had really been his own and that his subsequent attitude towards the plaintiff, towards Nanhe Khan and towards Afzal Khan was largely governed by this belief. That he did take Shabban Bibi to live with him in his Fort is admitted; that he did so after illicit intercourse between them had continued for some years I hold to be proved. On the other hand, I find it also proved that be provided her with respectable quarters in his Fort, that he corresponded with her on terms of extraordinary confidence and intimacy; that he allowed her to be spoken of as his 'wife,' and that he put her forward on several occasions, in matters involving public and official correspondence, under the designation of my second wife.' Nevertheless, it cannot be shown that be ever himself spoke or wrote of her as his 'Rani', or that he ever committed himself to the statement that she was his 'wedded wife.' As to the date on which Sbabban Bibi passed under the exclusive protection of the late Raja, becoming a veiled lady inside his ancestral Fort, the evidence leaves me in some little doubt. It was certainly anterior by several years to Babar Ali's statement of October 1877; it may have taken place as early as 1861-2 A.D., the date given by the plaintiff for her marriage at Patna; but it was probably about 1866 8 A.D. according to tbe statement of the first defendant, who puts it 'ten or twelve years' after the commencement of the illicit connection.
11. In recording these conclusions, I have anticipated the result of the further analysis which I undertook to make of the statements of the plaintiff's witnesses Shujayat Khan and Izharuddin Ahmad. I Quite definitely disbelieve these two witnesses. It is not merely that I consider their testimony heavily outweighed by direct and circumstantial evidence on the other side, my opinion is that a careful consideration of their statements shows them to be unworthy of credit.
12. I am afraid I must begin by saying that I am very little impressed with the arguments addressed to us regarding the respectability and social position of these witnesses. I do not want to hurt their feelings or anyone else's; but when we are told in argument that it is inconceivable that gentlemen of such independent position should come forward to bolster up a false claim, we are obliged to consider precisely what this argument is worth. Izharuddin Ahmad is an ex-Sub Inspector of Police, who somehow found it expedient to resign his post, after seventeen years' service, without pension or gratuity. Nawab Shujayat Ali Khan is a needy soion of the ancient royal family of Oudh living on a pension of twenty-five rupees a month: his own assertion that he is and has always been in a position to live in comfort and affluence by the sale of his ancient hoard of family jewels deserves no particular attention. How the evidence of these witnesses was obtained and why they support the plaintiff's case must remain matter for conjecture, but Musammat Chhuttan had been the mistress of a res pectable Muhammadan gentleman of Patna and there is a great deal of free-masonry amongst ladies of her profession. The witnesses were examined under oiroumstances singularly unfavourable to the elucidation of the truth; and for this 1 am satisfied that they themselves, and those responsible for the conduct of the plaintiff's case, are wholly to blame. The first application on behalf of the plaintiff was that they should be examined on commission at Patna, and this was very properly rejected by the trial Court. The witnesses were admittedly served in Patna with summonses direoting them to attend and give evidence before the Court at Azamgarh. Thereupon they both discovered some flimsy excuse for removing themselves to Calcutta, out of reach of the process of the Azamgarh Court, and compelled the trial Court to direct their examination on commission at that place. Of the manner in which that examination was conducted I find it difficult to speak with patience. The Counsel representing the defendants adopted in his cross-examination a bullying tone, which may have been justified by his instructions and might possibly have been effective before a Jury, but which certainly did no good under the circumstances. The learned gentleman who represented the plaintiff before the Commissioner in Calcutta is not subject to the disciplinary jurisdiction of this Court. I cannot call upon him for an explanation of his conduct and I, therefore, refrain from characterizing it in. the terms which it seems to me to deserve. The only conclusion I can draw from it is that he had instructions that the witnesses could not stand cross-examination and must be protected at all hazards from any question calculated to elicit the truth.
13. The cross-examiner in our Indian Courts suffers under one grave disadvantage in that he has to regulate his questions by the pace at which the answers can be taken down in long hand. It has often occurred to me to wonder how many of the classical instances in which false witnesses have been exposed in the English Courts under the stress of really able cross-examination could have been successfully duplicated before a Subordinate Judge out here, distracted by the paramount necessity of compiling a 'record' as the basis for a future appeal. Nevertheless, I have known a good cross-examiner work wonders even under this handicap; but to give him any chance at all, he must at least be allowed to exercise his art under the protection of a Court capable of enforcing the ordinary decencies of professional conduct on his learned opponent. As a sample of what took place in this suit before the helpless (and, I have no doubt, disgusted) Commissioner, I take the following from page 21A of our record.
14. Nawab Shujayat Ali Khan was asked whether, at the marriage of Shabban Bibi with Saiyid Abad Husain, he had heard the formula known as the 'Sigha' recited in Arabic. The question was objected to: the utter futility of the objection was disclosed a moment later when the question was allowed to be repeated in this form, whether any Sigha was recited at this marriage. Now the question as originally put was not only a proper one, it was quite clear. The witness stood committed to the statement that this marriage with the gentleman of Saiyid race took place in the Sunni form; and the 'Sigha' is recited at Shia, but not at Sunni, weddings; when therefore this legal gentleman interposed with his groundless, but by no means purposeless, objection, he might just as well have stood up and shouted to the witness: Be careful how you answer that; there is a catch in the question.' He would not have done the thing twice in the Court of any Judicial Officer fit for the position of a Subordinate Judge; but before the unfortunate Commissioner he did it again at page 22A, again at page 23A, and twice more under aggravated circumstances in the course of the cross-examination of Izharuddin Ahmad at page 34A; though it is interesting to note that on the second occasion he was just too late, the witness had put his foot in the trap before he could be stopped, One can only wonder what opinion they hold in Calcutta regarding the competence and intelligence of the Courts in these provinces, if they really suppose us capable of decreeing a claim for its. 40,000 on the practically unsupported testimony of two witnesses whose cross examination was conducted under these conditions.
15. After having said this, it is really idle for me to discuss further details in this evidence. I might comment on Jzbaruddin's remarkable statement that he is positive as to the amount of the dower-debt in this case because no woman is married in Behar for any lesser dowry; or point out that, according to his admissions on page 34A, he either knows nothing about the three gentlemen named as having acted as 'Kazi' and formal witnesses to the plaintiff's marriage with Raja Muhammad Salamat Khan, or else really believes them to be still alive and residing in Patna city, whereas it is an essential part of the plaintiff's case that they are dead. Nor need 1 insist on the witness' obvious belief (before he hastily corrected himself, page 36A) that there was railway communication open between Azamgarh and Patna at the date of the alleged marriage, I am, therefore, not particularly impressed with the fact that this ex-Police Officer was clever enough (also page 36 A) to turn on his cross-exminer, by asserting that it was not any agent of the plaintiff's who had arranged with him about the evidence he was to give, but, on the contrary, the general attorney of the defendants had brought him their compliments and a polite request not to give evidence in the case. Once the witness had been named, the defendants knew quite well that he would have to give evidence; if they had decided to tamper with him, their request would have taken a very different form.
16. I have given reasons enough for concurring with the Court below in rejecting the direct evidence for the plaintiff on the subject of her marriage at Patna in 1861-2 A.D. This involves the failure of the claim for Bs. 40,000 on account of dower-debt. It has not been suggested before us in argument that we are bound to come to some finding on the question of marriage or concubinage in order that, if we find a marriage of unknown place or date established by the circumstantial evidence, we might decree in favour of the plaintiff the minimum dower-debt prescribed by Muhammadan Law. One reason why the point was not taken may be the provision made for the plaintiff by the deed of February 22nd, 1886, which is very far in excess of the minimum dowry. 1 feel serious doubts whether we ought to discuss further the circumstantial evidence in favour of the proposition that a marriage must have taken place, on some date or other, and probably inside the Fort at Azamgarh, between the plaintiff and the late Raja Muhammad Salamat Khan. The plaintiff has elected to reserve the question of her claim to a share in the estate to a separate litigation; in such a litigation she would have to take the opinion of the Court as to the effect of her deed of relinquishment of February 22nd, 1886 (P. 44R) and also as to the validity of the dispositions of his property effected by the late Raja in his lifetime. If the plaintiff desires to carry the matter further, even a finding in favour of the marriage in the present suit would not operate so as to conclude the litigation. In the case now before us, the plaintiff stands committed to the plea that her marriage with Raja Muhammad Salamat Khan took place inside the house of Sadiq Huaain Khan, in the city of Patna, in or about, the year 1851-2 A.D. My finding is that no such marriage took place. The circumstantial evidence relied on by Mr. O'Conor is evidence that a marriage took place somewhere, perhaps before 1877, or 1880 A.D. but certainly before the plaintiff went on pilgrimage to Mecca in 1837 A.D, ostensibly as the 'second wife' of Raja Muhammad Salamat Khan. The evidence about this pilgrimage is a strong point in the plaintiff's favour; read in connection with the evidence of Shah Salimullah (P. 4.A), who strikes me as a truthful witness, it becomes even stronger. This gentleman's father was a religious teacher of some local renown; he had made disciples of the late Raja and of his mother, as well as of the plaintiff, The pilgrimage to Mecca must have taken place under the influence of this conversion and, so to speak, under the auspices of this spiritual guide. It seems equally hard to believe that Raja Muhammad Salamat Khan would have deceived his spiritual guide as to the plaintiff's position, or that the latter would have allowed him to make the pilgrimage in the company of his mistress, passing her off as his wife, yet there are arguments on the other side, and more particularly the wording of the Raja's deed of February 22nd, 1886. It is true he once more calls Musammat Shabban Bibi 'my second wife', but he avoids calling her his 'Rani' or his 'wedded wife,' and the whole tone of the document is inconsistent with the idea that he regarded her as heir to a substantial share of his estate under the ordinary rules of Muhammadan Law.
17. I do not propose to pursue this matter further. It is one thing for a lady in the position of this plaintiff to ask the Court to infer from evidence of long continued and exclusive cohabitation, on the ostensible footing of a lawful wife, that there must at some time or other have been a valid marriage between herself and the late Raja Muhammad Salamat Khan; it is not quite the same thing to set up a marriage at a particular time and place, and then to fall back on the circumstantial evidence when the case actually set up has been disproved. Moreover, when once the Court has come to a clear finding, as I think we must do in this ease, that the connection between the parties was in its inception an illegitimate one, it is a very difficult matter to infer a subsequent marriage from the sort of evidence which we are asked to rely upon in this case. On the evidence as it stands, I think the proper course is to dismiss the appeal upon a finding that neither the marriage set up by the plaintiff, nor the dower debt claimed by her, is proved by the evidence.
18. I agree that this appeal must be dismissed. I am satisfied that the story of the Rs. 40,000 dower debt is a myth, and that the plaintiff's claim in this suit must fail.
19. It would, I think, be unfortunate if we were to leave our own opinion on the question of the plaintiff's marriage in doubt after this protracted and expensive litigation. It may be that our view will not in law irrevocably bind the parties. But I think that the parties, after all the able argument to which we have listened, are at least entitled to my opinion for what it is worth. If the documents and the admitted facts of the case, such as the acceptance of the plaintiff as a disciple and the subsequent pilgrimage to Mecca, stood alone, I should unhesitatingly find it proved beyond doubt that at some time or another the Raja eventually married this woman, but that, being the class of woman she was, she freely and with full understanding relinquished all her rights in exchange for the present transfer which was made to her, and which gave her a certain independence. But I have come to the conclusion, having regard to the false case of the Patna marriage, and the extravagant dower which she has foolishly set up in her old age, that she is unable to prove anything better, and that any Court ought to hold that such a ridiculous story is hopelessly inconsistent with the existence of an honest one, or of any real marriage at all.
20. I would add that I entirely agree with all that my brother has said about the general conduct of the examination of the Patna witnesses before the Commissioner at Calcutta. Such proceedings only bring the law into discredit and contempt. They react upon those who are responsible for them. The impression left upon my mind by the proceedings adopted for getting the evidence of these witnesses on to the record, and by the conduct of the plaintiff's representative while they were under examination, is that the evidence given by these two men is quite worthless.
21. By the Court.--The appeal is dismissed with costs, including fees in this Court on the higher scale.