P.L. Bhargava, J.
1. This is an appeal by Rahmatullah & his three sons, who were defts. in a suit, instituted by the plffs.-respondents, Maqsood Ahmad & his two sisters, to recover possession over a house, which admittedly be. longed to Mohammad Yaqub, son of Seadat by his wife Mt. Qadri. It is not disputed that the plaintiffs are the children of Mohammd Yaqub's own sister. They claimed title to the house in suit as heirs of Mohammad Yaqub & alleged that the defts. were in wrongful possession thereof. The defence set up by Rahmatullah (deft. 1) was that he was the own brother of Mohammad Yaqub, being the son of Seadat & Mt Qadri, & thus he had inherited the houses as an heir under the Mohammedan Law. The case of Rahmat-ullah's sons (defts. 2 to 4) was that they were owners in possession of the house, under a will executed by Mohammad Yaqub. The plffs. denied that Rahmatullah was the son of Saadat A challenged the will set up by his sons.
2. The learned Munsif of Meerut, who tried the suit, found that Rahmatullah was not the son of Saadat, but, that he was the illegitimate son of Mt. Qadri & that the will set up by Rah-matullah's sons was valid & the plffs. therefore, had no title to the property. Accordingly, he dismissed the suit.
3. The lower appellate Court affirmed the trial Court's finding that Rahmatullah was the illegitimate son of Mt. Qadri & further found that he was not the uterine brother of Mohammad Yaqub. He also found that Mohammad Yaqub had not executed any valid will. The suit was, therefore, decreed.
4. The learned counsel for the appellants has contended that, even as an illegitimate son of Mt. Qadri, Rahmatullah should have been held to be uterine brother of Mohammad Yaqub, who was also born of the same mother; & that as a uterine brother he was entitled to inherit the property of Muhammad Yaqub as an heir under the Muhammedan Law.
5. The children of the same mother but by different fathers are referred to as 'uterine (half) sisters & brothers'. The question which arises for consideration is whether an illegitimate child of one mother can be considered the uterine brother of a legitimate child of the same mother. In order to decide the question, it is necessary first to determine whether each of them has got a father. A child born in lawful wedlook is the legitimate child of his parents & there can be no doubt about such a child having a father. An illegitimate child is begotten by a man but that man cannot be considered in law to be his father.
6. In Shama Churun Sircar's Tagore Law Lectures, 1874 on the Muhammadan Law, page 275, we find the following quotations from Sharaya-ul-Islam :
'Nasab, or descent is established by a valid marriage, or by the semblance thereof; it ia not established by illicit intercourse (zina). Sharaya-ul-Islam, p. 266. 'If a man should have such intercourse with a woman, & a child be generated of his seed, it is not related to him in law. Still, according to the most approved doctrine, the child is prohibited both to him & to the woman; as, however, it is the product of the man's seed, it is, in common parlance, termed his child. Ibid.'
And from these quotations the following principle is deduced :
'An illegitimate child (walad-uz-zina) has no parentage (nasab) .....'.
7. In Baillie's Digest of Muhammadan Law (Edn. 2) on the authority of Bidaya & Jow-hurrut-oon-Neyyeran, book Ikrar, it has been stated;
'When a man has committed zina with a woman, & she is delivered of a son whom be claims, the descent of the son from the man is not established; but it is established from the woman by the birth. (p. 414). The residuaries of a wulud-ooz-zina & of the son of an imprecated woman are the moowaleds of their mothers for they have no father,.... (P. 708).'
8. As an illegitimate child has no parentage or father & is not related in law to the man who has begotten him, the latter will not be considered his father for purposes of determining his nasab. Therefore, the man who begets an illegitimate child will not be considered in law as his father & the mother's link alone being not sufficient to establish uterine relationship, an illegiti. mate child cannot be considered the uterine brother of the legitimate child of the same mother. The lower appellate Court was, therefore, right in holding that Rahmatullah was not the uterine brother of Mohammad Yaqub & as such he (RahmatulIah) was not entitled to inherit as his heir the property of Mohammad Yaqub.
9. The applts' learned counsel has furthercontended that, in accordance with the Hanafi Law of Inheritance, an illegitimate child is entitled to inherit from his mother & her relations& the legitimate son of the mother is also her relation. Consequently, Rahmatullah was entitled to inherit the property left by his mother's son Mohammad Yaqub. The argument is based on the following passage at p. 839 of Muhimmadan Law by Tyabji (Edn. 3) :
'An illegitimate child & its father are not related in law, nor competent to inherit from each other, but under Hanafi law the mother & its illegitimate offspring are competent so to do. The same rules apply to relations through the illegitimate father & mother, respectively.'
In the Tagore Law Lectures on the Muhammadan law, on the authority of Sharaya-ul-Islam, the following principle was enunciated :
'An illegitimate child (walad-uz-zina) has no parentage (nasab), so neither the man who has unlawfully begotten, nor the woman who has unlawfully borne (a), the child nor any of their relatives, can inherit from such child; nor has the child any title to inherit from them.
(a) According to one report, however, the mother & her relatives can inherit the property of an illegitimatechild of a woman separated from her husband by lian or imprecation; but this report is rejected. (P. 275).'
10. In Baillie's Digest of Muhammadan Law (Edn. 2), however the following passage appears on p. 703 :
'The residuaries of a wulud-ooz-zina & of the son of an imprecated woman are the moowalees of their mothers, for they have no father, & the kurabut, or kindred of their mother inherit to them, & they inherit to them. So thatif the son of an imprecated-woman should leave a daughter, a mother, & the imprecator, the daughter would take a half, the mother a sixth, & the remainder would revert to them as if he had no father. If besides these there were also a husband or a wife, he or she would take his or her share, & the remainder be between the other either as share or as return. And if he should leave his mother, a half brother by the mother & a son of the imprecator, the mother would take a third, the hall brother by the mother a sixth, & the remainder would revert to them, there being nothing for the son of the imprecator, as the deceased has no brother on the side of the father. When the child of the son of an imprecated woman dies, the family ot his father inherit to him, being his brothers, but the family of his grand-father, who are his paternal uncles, & their children, do not inherit to him. The same is true of the wulud-ooz-zina, except that there is a difference between them in one case, which is that the tuwam or twin of the wulud-ooz-zina, inherits only as a half-brother by the mother, while the twin of an imprecated son inherits only as a half-brother by the mother, while the twin of an imprecated son inherits as a full brother.'
Therefore, there can be little doubt that, under the Hanafi Law of Inheritance, an illegitimate child can inherit from his mother & her relations.
11. We will now consider the question whether a son born of a woman after her marriage can be considered as one of 'her relations,' whose property her illegitimate child is entitled to inherit. In the passage, which we have quoted from Baillie's Digest of Mubammadan law, the relations of an illegitimate child, who can inherit his property, are mentioned & it is stated that he (illegitimate child) can inherit the property of the same relations. 'Half brother by the mother' is no doubt, mentioned among these relations; but, as already pointed out, Mohammad Yaqub cannot be considered as 'half brother' of Rahmatullah, as the latter had in law no father. It would appear from the quotation that the discussion is prefaced with the observation that a wulud-ooz-zina has no father.
12. When there is the question of an illegitimate child inheriting the property of his or her mother or through his or her mother, & we have to find out the mother's relations, whose property he or she can inherit, obviously, those relations, must be his or her mother's maternal relations. The illegitimate child has in law no father, & he or she can have nothing to do with his or her mother's relations by subsequent marriage, as a result of which new relationships arise. For purposes of inheritance there must be some relationship between the person, on whose death the succession has opened, & the person who claims title to succeed. No relationship can possibly arise between an illegitimate child & child born of his or her mother in lawful wedlock. We, therefore, hold that a son born of a woman after her marriage cannot be considered as 'her relation,' whose property her illegitimate child is entitled to inherit.
13. The view which we have taken is supported by a decision of the Calcutta H. C. in Bafatun v. Bilaiti Khanum, 30 Cal. 683 where it was held that among the Sunni sect illegitimacy is no bar to the person inheriting from his mother & his maternal relations.
14. Mohammad Yaqub was, no doubt, the son of Mt. Qadri, but he belonged to the family of her husband & as such he cannot be considered 'her relation' so as to entitle her illegitimate child to succeed to his property. Therefore, Rahmatullah had no right to inherit the property of Mohammad Yaqub through his mother.
15. The finding of the lower appellate Court on the question of will is one of fact & has not been challenged before us. We, therefore, see no force in this appeal. It is, accordingly, dismissed with costs.