1. This appeal comes before this Bench on account of a difference of opinion between two learned Judges of this Court who heard the appeal in the first instance from the Court of a Subordinate Judge. The two learned Judges having differed, this appeal was filed under Section 10 of the Letters Patent.
2. The only point for determination in this appeal is whether the defendants-respondents are the legitimate sons of one Enayat Ullah Khan. In the Court of the Subordinate Judge there were a few other points of difference between the parties, but those points do not any longer arise. Enayat Ullah Khan died on 30-4-1916, and left him surviving several brothers, a son, the plaintiff-appellant, and the defendants who claim to be the step-brothers of the plaintiff. The plaintiff's case, as made in the plaint, was that the defendants were the children of one Mt. Durga Dhobin, the wife of one Cheta and it was doubtful whether their father was Enayat Ullah. As the case proceeded, the position taken up by the plaintiff was that possibly Enayat Ullah Khan was the father of the first two of the defendants, but he was surely not the father of the 3rd defendant, Halimullah Khan. His witnesses stated in Court that Mt. Durga took up her residence permanently with Enayat Ullah Khan some 30 years prior to their deposition. In the arguments, however, before us, it has bean practically conceded that Enayat Ullah Khan was the father of not only all the three defendants, but also of their two elder brothers Asad Ullah Khan and Ruh Ullah Khan, who are dead, and who died before Enayat Ullah Khan. The plaintiff had a full brother Rafiq Ullah Khan, who also predeceased his father Enayat Ullah.
3. The plaintiff, claiming to be the sole heir of his father, declared in the plaint that the defendants who were holding three-fourths of Enayat Ullah Khan's property were not entitled to the same, being illegitimate children of that gentleman. The defence as explained by the application dated 22nd December 1922 (printed at page 6 of the record) was that the defendants were the children of one Mahmuda Begam, a lady of Sherwani Pathan clan, to which Enayat Ullah admittedly belonged, and that Mahmuda Begam was the lawfully wedded wife of Enayat Ullah. The defendants' case as developed in the course of the evidence was that their grandfather (mother's father) was a Sherwani Pathan, that he came from the village of Shahjahanpur which was not far from the village of Enayati to which Enayat Ullah belonged and settled in the latter village. The defendants were unable to state if any relations of their alleged maternal grandfather, Mansur Khan, were alive.
4. The Court of first instance came to the conclusion that there was not enough evidence to satisfy it that the defendants' mother was a Hindu by religion at the time she entered Enayat Ullah's house, and that even if such was the case, namely the defendants' mother was in the beginning a Hindu and the wife of a Hindu, that fact did not help the plaintiff's case. It further expressed the opinion that a series of acknowledgments made by Enayat Ullah raised a strong presumption of legitimacy in favour of the defendants. The learned Judge was also not satisfied as to the truth of the defendants' story that their mother was a girl of the Sherwani clan. In the result the suit was dismissed. On appeal two learned Judges of this Court differed. One of the Judges held that it was not established that the defendants' mother was the wife of Cheta (the alleged husband of Durga) so as to exclude all possibilities of a legal marriage, but it was established from both oral and documentary evidence that she was the wedded wife of Enayat Ullah Khan. Accordingly the learned Judge was of opinion that the appeal should be dismissed. On the other hand, the learned colleague of the Judge held that it had been definitely established that the defendants' mother was the undivorced wife of one Cheta Dhobi, and that in the circumstances no presumption of a lawful marriage between Enayat Ullah and Mt. Durga could be raised. He was therefore of opinion that the appeal should be allowed and the plaintiff's suit should be decreed.
5. We have heard the learned arguments addressed to us at length, and have come definitely to the opinion that we must accept almost in its entirety the opinion of the learned Judge who was in favour of decreeing the plaintiff's appeal. In view of the fact that there is on the record a well-reasoned judgment in favour of the plaintiff, we do not think it necessary to discuss the evidence in detail, but we would give some indication of the reasons which led us to think that the plaintiff's appeal should succeed. Before discussing the oral evidence, we should point out that the Court of first instance did not hear in person three of the plaintiffs' witnesses, who were, being purdanashin ladies, examined on commission. Then the learned Judge does not say that the witnesses did not impress him well. He rejected their evidence on the mere ground that the plaintiff's witnesses were not independent-a remark which is not at all accurate, in the majority of cases. (After discussing the evidence, the judgment went on.)
6. Taking the whole evidence on the record, therefore, we are more than satisfied that the plaintiff's case is a true one, namely, Enayat Ullah kept a Hindu married woman as his mistress, and the defendants are the children of Enayat Ullah by that woman.
7. In the teeth of the above finding no rule of presumption of legitimacy or marriage can avail the defendants. The state of the law has been very clearly set forth in the judgment of this Court delivered by the learned Judge who was for decreeing the appeal, and we do not propose to go over the same ground again. It would be sufficient to mention that it is only where direct proof of marriage is not available that indirect proof of marriage by way of acknowledgment of legitimacy in favour of a son is allowed to take the place of direct proof of marriage. Where direct proof is available to establish that marriage was impossible or a marriage would be invalid, no question of presumption of marriage on account of an alleged acknowledgment can arise. [See Privy Council case of Habibur Rahman v. Altaf Ali AIR 1922 PC 159 and also Muhammad, Allahabad Khan v. Muhammad Ismail Khan (1888) 10 All 289].
8. The result is that this appeal succeeds, and we set aside the decree of this Court and that of the Court of first instance and decree the plaintiff's claim for possession with costs throughout, costs in this Court including counsel's fees on the higher scale. We direct an enquiry into the amount of mesne profits accruing due since the institution of this suit by the Court of first instance under Order 21, Rule 12, Clause (c) of the Civil P.C.