1. This is a second appeal by Mt. Sampatia Bibi and Alam Ali defendants, against a decree of the lower appellate Court in favour of the plaintiff, decreeing possession of a house to the plaintiff. The following pedigree is relevant:
X|-------------------------------------------| |Shamsher Sher| =Mt. Sampatia,Shamsad Ali widow.
2. Defendant Alam Ali, appellant, is the son of one Zahur Ali, and Mt. Sampatia married Zahur Ali after the death of her husband Sher. The claim of the plaintiff was that Sher was a Shia, and as he had no children his childless widow Mt. Sampatia did not inherit any share in the house. He further pleaded that on the death of Sher, Shamsher inherited the whole house as sole heir, and on the death of Shamsher his son Shamsad inherited the house, and on 9th July 1932 Shamsad sold the house by a sale deed to the plaintiff. As that defendant , Mt. Sampatia, was allowed by the plaintiff to live in the house and he now desires to resume possession of the house. The Court of first instance dismissed the suit on the finding that Shamsad Ali was not the legitimate son of Shamsher Ali but was an illegitimate son and did not inherit any rights from Shamsher Ali. The plaintiff appealed to the lower appellate Court and the lower appellate Court held that Sher was a Sunni and not a Shia and therefore Mt. Sampatia, as widow of Sher, inherited l/8th share in the house. The lower Court further held that Shamsad was a legitimate son of Shamsher Ali and therefore inherited 7/8th of the house from Shamsher Ali. It also found that plaintiff obtained possession on his sale deed and plaintiff permitted Mt. Sampatia to come to reside in the house at a later date, and her claim that she was residing in the house in lieu of dower was not established. The Court below therefore granted a decree to the plaintiff for joint possession with Mt. Sampatia, the share of the plaintiff being 14 annas and the share of Mt. Sampatia being two annas. The appeal of Mt. Sampatia claims that she is entitled to the whole house of which she is in possession in lieu of dower and also that if that be not established then the plaintiff has no right to suit as he is illegitimate, and that the Court below was wrong in relying on the presumptions of legitimacy as there is no absolute presumption of legitimacy under the Mahomedan law. Turning to the question of dower first, learned Counsel for the appellants relied on Muhammad Shoaib Khan v. Zaib Jahan Begam 1927 50 All 423, Imtiaz Begam v. Abdul Karim Khan 1930 ALJ 1587 and Zamin Ali v. Azizunnissa 1933 ALJ 483. In Muhammad Shoaib Khan v. Zaib Jahan Begam 1927 50 All 423 it was held that the right of a Muhammadan widow is founded on her power as creditor for her dower to hold the property of her husband of which she has lawfully and without force or fraud obtained possession until her debt is satisfied. But it does not follow from this that unless and until the widow actually enters into possession of the estate on the express assertion that she is taking possession in lieu of her dower debt, she cannot subsequently be allowed to raise such plea. On p. 425 it is shown in the ruling that the widow in question obtained possession of the property by mutation, that is, she was entered as the owner of the property and she was in possession as an owner. Now the finding in the present case of the lower appellate Court is as follows:
I would also agree that it has not been proved that Mt. Sampatia is in possession in lieu of dower. It is in evidence that Sher Ali died 3 or 4 years after his marriage; in this period it is difficult to believe that she could have thought about or demanded her dower. No occasion for the demand is shown, the story therefore does not strike me as true. Sampatia then re-married, and this husband died say about 6 years ago; she was during her marriage living with him and the evidence for the defendant concedes that plaintiff took possession of a privy in the house about the same time; it is difficult to believe that if Sampatia was in possession she would keep silent about it; it is more reasonable to think that plaintiff was in possession so that when the woman was turned out she was allowed by plaintiff to live here, so that I believe she is living in the house not in lieu of dower but permissively through plaintiff.
3. The lower Court may not be correct in its view that there was any legal necessity for an admission of dower to be made or for the defendant to assert that she was taking possession in lieu of dower, but the lower Court has found as a definite fact that her possession was merely permissive by license of the plaintiff, and the case is therefore altogether different from that in Muhammad Shoaib Khan v. Zaib Jahan Begam 1927 50 All 423, where the widow was entered in the khewat as a proprietor. A similar principle was laid down in Imtiaz Begam v. Abdul Karim Khan 1930 ALJ 1587 and in Zamin Ali v. Azizunnissa 1933 ALJ 483. In all these cases however the widow was in proprietary possession and in Imtiaz Begam v. Abdul Karim Khan 1930 ALJ 1587 her name was also entered in the khewat by mutation. I consider that in the present case as the widow was not in proprietary possession but merely in permissive occupation as shown by the finding of the lower appellate Court, which is binding on this Court in second appeal, the rule of Mahomedan Law that she has a right to retain possession until payment of her dower debt does not apply. The next point which was argued was in regard to the finding of the lower Court that the vendor of the plaintiff Shamsad Ali was legitimate. Now the argument in ground No. 1 of appeal was:
Because there is no absolute presumption of legitimacy under the Mahomedan law and in the particular circumstances of this case the Court below has erred in relying on any such presumption.
4. The ground is incorrect in assuming that the Court below relied only on a presumption or that the presumption considered by the Court below was an absolute presumption of legitimacy under the Mahomedan law. On the contrary the Court below sets out the evidence of Mahbub Ali, the plaintiff, to the effect that when he was away in service Sham-sher brought a woman Mt. Babhni some 50 years ago and marriage took place with the plaintiff and Mt. Babhni some two or four years later and Shamsad was born to that union one or two years after marriage. Another witness for the plaintiff, Muhammad Husain, stated that Shamsad was the son of Shamsher and Mt. Babhni after they were married and that the witness was present at the marriage. Another witness for the plaintiff, Hifazat Husain , gave evidence that the mother of Shamsad was legally married to Shamsher. Evidence to the contrary was given for the defence. The Court found after considering the evidence:
Therefore with the presumption in favour of plaintiff's version and the evidence of Muhammad Husain I prefer to believe that Shamsad was the legitimate son of Shamsher, and differing from the finding of the learned Munsif I hold accordingly.
5. It is clear therefore that the Court below relied on the evidence and did not consider that there was any absolute presumption. The Court however did refer to 'the presumption in favour of the legitimacy and the evidence for the plaintiff.' No rule was referred to by the appellant for the proposition that there would be no presumption under the Mahomedan law of legitimacy if the marriage were proved. In Sibt Mohammad v. Mohammad Hameed 1926 24 ALJ 723 it was held by a Bench of this Court that where a daughter was born during the continuance of a valid marriage between her mother and her father, who were Muslims, but her birth was within six months of the date of her parents marriage, the question of legitimacy must be decided in accordance with Section 112, Evidence Act, although its provisions conflict with the rules of Mahomedan law and the child was therefore legitimate daughter of her father. That Section 112, Evidence Act applies by its terms to all classes of persons in British India and no exception is made in favour of Muhammadans. Reference was also made to Khajah Hidayat Oollah v. Rai Jan Khanum (1841-46) 3 MIA 295 where it was held by their Lordships that under the Mahomedan law continual cohabitation and acknowledgment of parentage is presumptive evidence of marriage and legitimacy. In Mahomed Bauker Hoossain Khan Bahadoor v. Shurfoon Nissa Begum (1859-61) 8 MIA 136 it was laid down that by the Mahomedan law the legitimacy of a. child of Muhammadan parents may be presumed or inferred from circumstances without any direct proof either of the marriage between the parents or of any formal act of legitimation. Wilson's-Anglo-Mahomedan Law, para. 30 , lays-down that the due fulfilment of the formal requirements of marriage may be presumed in default of evidence to the contrary from (a) continual cohabitation; as husband and wife; or (b) the fact of the man acknowledging as the son a child born to the woman.
6. In Section 50, Evidence Act, Illus. (a), where the question is whether A and B were married, the fact that they were usually received and treated by their friends as husband and wife is relevant. Reference was also made to the presumption of legitimacy laid down in Tyabji's Mahomedan Law, para. 81. In view of these authorities it does not seem to me that the finding of the lower Court is in any way incorrect. The lower Court acted; on the presumption which undoubtedly exists even though the parties are Muhammadans and on the positive evidence which was given in favour of the plaintiff, and on a consideration of these facts the lower Court has come to the conclusion that the legitimacy of Shamsad as the son of Shamsher Ali has been proved. No ground has been made for interference with the decree of the lower appellate Court and I therefore dismiss-this second appeal with costs. Permission is granted for a Letters Patent appeal.