K.S. Palaniswamy, J.
1. Suit in forma pauperis for partition of plaint properties and for allotment of 1/8th share to the plaintiff. Fathima Bi, the plaintiff, and Abbas Bi Ammal, the fifth defendant, are the daughters of one Moosa Bi Ammal, who died in 1955. Dawood Bi Ammal, the fourth defendant, is the elder sister of Moosa Bi, and her children are defendants 1 to 3. The plaintiff's children are defendants 6 to 8. The ninth defendant is the husband of the third defendant. The tenth defendant is said to be interested in one of the plaint items as a tenant. The case of the plaintiff is that her mother Moosa Bi was the second wife of Abdul Rahman, the first wife being the fourth defendant, that she and the fifth defendant Abbas Bi, being the daughters of Abdul Rahman by his second wife Moosa Bi, are each entitled to 1/8th share in the estate of Abdul Rahman, who died in January, 1958. On 2nd May, 1958, the plaintiff executed a registered deed of release under Exhibit P-14 in favour of defendants 1 to 4 relinquishing all her rights in the estate of Abdul Rahman. On the same date, defendants 1 to 4 executed a settlement deed Exhibit P-15 in favour of defendants 6 to 8, children of the plaintiff, settling upon them one of the properties of Abdul Rahman. The plaintiff questions these transactions. According to her, the release deed was brought about by defendants 1 to 4, with a view to deprive her of her legitimate share in her father's estate making false recitals in the document. Her contention is that being an illiterate and helpless lady and suffering from penury, she was prevailed upon to execute the document by exercising undue influence and committing fraud and by keeping her in darkness about the contents. Her contention is that the said deed is void and inoperative and cannot affect her title. It is also her contention that the settlement deed was a part of the fraud committed by defendants 1 to 4, and this is also null and void. She wants a declaration that the release deed is void and inoperative and prays that a partition may be effected of all the properties and that 1/8th share may be alloted to her.
2. The fifth defendant, sister of the plaintiff, supported the plaintiff and filed a written statement. She also had executed a deed of release on 20th February, 1969, Exhibit P-17 in favour of defendants 1 to 4 just as the plaintiff had executed Exhibit P-14 and obtained a deed of settlement from the second defendant under Exhibit P-18 on the same date. In her written statement she questioned these documents contending that they were brought about by fraud, misrepresentation and undue influence. But she has compromised the suit with defendants 1 to 4 and does not press her defence.
3. The third defendant, and her husband, the ninth defendant, filed written statements stating that the plaintiff and the fifth defendant at e the daughters of their father Abdul Rahman by his second wife Moosa Bi and conceding a share in her father's estate. They also made certain allegations about the release deed executed by the third defendant in favour of defendants 1, 2 and 4. In substance, they supported the case of the plaintiff. Ultimately they also did not press their contentions, but were content to enter into a compromise with defendants 1, 2 and 4.
4. The suit was contested only by defendants 1, 2 and 4. Their contention is that the plaintiff and the fifth defendant were not the daughters of Abdul Rahman, that Moosa Bi, mother of the plaintiff and the fifth defendant, had already been married by another person, and that even if the plaintiff and the fifth defendant had been born to Abdul Rahman, they are only children born out of adulterous intercourse and cannot claim right of inheritance in the estate of Abdul Rahman. Their further contention is that realising their status, the plaintiff and the fifth defendant executed release deeds and were content to take some properties which these defendants gave, and that on account of these transactions, the plaintiff was not entitled to claim a share. They also contend that all the properties described in the plaint did not belong to Abdul Rahman. They have also raised some other contentions which would be seen from the issues which are set out below.
5. The tenth defendant claims to be a tenant of the land described in item 4 of the plaint B schedule and contends that his right as a tenant, entitled to the benefits of the Madras City Tenants' Protection Act, has been established in O.S.No. 1653 of 1967 and that as such this suit, so far as he is concerned, is barred by res judicata by reason of the decision in the said suit.
6. The issues framed for trial are:
1. Are the plaintiff and the fifth defendant daughters of the deceased Abdul Rahman Sahib?
2. Was there a marriage between Moosa Bi Animal and Abdul Rahman Sahib Is the said alleged marriage a void one giving (no) right of inheritance to the plaintiff and fifth defendant ?
3. Is the alleged acknowledgment of the plaintiff by the deceased true and valid?
4. Was the release deed dated 2nd May, 1958) got executed by exercising fraud and undue influence by the defendants 1 to 4 on the plaintiff?
5. Has not the plaintiff lost her rights, if any, in the estate of the deceased Abdul Rahman Sahib by virtue of the release deed dated 2nd May, 1958 and the settlement deed in favour of defendants 6, 7 and 8?
6. Is the settlement deed in favour of defendants 6 to 8 null and void ?
7. Are the release deeds dated 2nd February, 1959, and the settlement deed dated 2nd February, 1959 not valid Has not the fifth defendant lost whatever right she had, if any, in the estate of the deceased by the execution of the said release deed and the settlement deed in her favour ?
8. Did deceased Abdul Rahman Sahib leave behind the properties mentioned in Schedules B, C, D and E to the plaint ?
9. Out of the properties mentioned in B and C schedules to the plaint, are the defendants 1, 2 and 9 not the owners of the properties standing in their name ?
10. What are the shares the parties are entitled to ?
11. Is the plaintiff estopped from contending that the settlement in favour of defendants 6, 7 and 8 dated 2nd May, 1958 and the release deed dated 2nd May, 1958 are null and void, in view of the fact that she is in enjoyment of the benefits under the settlement deed ?
12. Has the Mahr amount due to the fourth defendant been paid to her?,
13. Did the deceased leave behind a mortgage debt of Rs. 1,800 over house and ground No. 13-A, Narayana Naicken Street, Pudupet, Madras, and have the defendants 1, 2 and 4 discharged the said debt after the death of the deceased Abdul Rahman Sahib?
14. Is the tenth defendant a tenant of the land only in the said property? Is he the owner of the buildings, sheds and superstructure thereon Is he entitled to the benefits of the Madras City Tenants Protection Act?
15. Is the suit against the tenth defendant barred by res judicata by virtue of the decree dated 9th February, 1959, in O.S.No. 1653 of 1937 on the file of the City Civil Court, Madras?
16. To what relief are the parties entitled
7. Issues 1 to 3:--The main question for consideration in this case is about the paternity of the plaintiff. The paternity of a child is its relation to its parents which can be established only by the marriage between its parents. The marriage may be valid or irregular, but not void. In Mahomedan Law marriage is a contract having its object the procreation and legalisation of children. Marriage may be established by direct evidence. If direct proof is not possible, it may be established by indirect proof, that is, by presumptions drawn from certain facts. Marriage may be presumed from prolonged cohabitation combined with circumstances or from an acknowledgment of legitimacy in favour of a child. The Privy Council in Habibur Rahman v. Altaf Ali ILR(1921) Cal. 856, observed:
By the Mahomedan Law a son to be legitimate must be the offspring of a man and his wife or of a man and his slave; any other offspring is the offspring of zina, that is, illicit connection, and cannot be legitimate. The term ' wife' necessarily connotes marriage; but, as marriage may be constituted without any ceremonial, the existence of a marriage in any particular case may be an open question. Direct proof may be available, but if there be no such, indirect proof may suffice. Now one of the ways of indirect proof is by an acknowledgment of legitimacy in favour of a son.
8. Mahomedan Law prescribes certain essentials of a marriage. In paragraph 252 of the Principles of Mahomedan Law--16th Edition--by Mulla, they are stated thus:
It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mahomedans. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage Neither writing nor any religion ceremony is essential.
The law imposes certain prohibitions based on consanguinity and affinity. If a man marries a woman in violation of such prohibition, the marriage is void and the offspring is illegitimate. There is also Quoranic injunction against a man having at the same time two wives who are so related to each other by consanguinity, affinity or fosterage that if either of them had been a male they could not have lawfully intermarried, as for instance, two sisters or aunt and niece. On the question as to whether a marriage performed in violation of such an injunction is void or is only irregular, there is difference of opinion among some of the High Courts. According to the Calcutta High Court, such a marriage is void and the issue is illegitimate. Aizunnissa Khatton v. Karimunissa Khatoon ILR(1896) Cal. 130. But, the Madras High Court has taken the view that such a marriage is only irregular and the issue is not illegitimate. Rahiman Baibi Saheba v. Mahoob Bibi Saheba : AIR1938Mad141 . The Bombay High Court has also taken the same view. Tajli Abalal v. Mowlakhan Alikhan L.R. (1917) 39 I.C. 603.
9. The fourth defendant and Moosa Bi, mother of the plaintiff, are full sisters. The fourth defendant had already been married by Abdul Rahman. The plaintiff, while filing the plaint was alive to the fact that a marriage between her mother, Moosa Bi and Abdul Rahman, would be met with the objection that it was in violation of the Quoranic injunction. With that feeling she has alleged in the plaint that though such a marriage is irregular, the offspring of such a marriage is not illegitimate. It is further alleged in the plaint that because Abdul Rahman took Moosa Bi as his second wife, while the first wife, the sister of the second wife, was alive, the marriage was not celebrated with 'any pomp or publicity' --vide paragraph 5. The plaint is significantly silent about the material details about the alleged marriage. There is no allegation as to when the marriage took place even approximately; nor is there any allegation about the place of the marriage. Nothing is mentioned about Mahr. The contesting defendants alleged in their written statement that Moosa Bi was the wife of another man during the period when she is said to have lived with Abdul Rahman and begotten the plaintiff, that therefore even if the plaintiff had been born to Moosa Bi by Abdul Rahman, it was the result of adulterous intercourse and that as such the plaintiff cannot claim right of inheritance. To this serious allegation the plaintiff did not choose to file a reply statement with the leave of the Court. No doubt, law does not impose a duty upon every plaintiff to file a statement in reply to the allegations made by the defendant in his written statement. But, in this case, the circumstances under which the plaintiff came forward with the suit make it incumbent upon her to have filed a reply statement stating what her case was with regard to the allegations made by the contesting defendants as regards the alleged first marriage of Moosa Bi. The plaintiff's case is that she was sought to be dis-inherited from her father's estate by the contesting defendants by obtaining a release deed from her as though she was not a legal heir entitled to the property, but was only a foster daughter. Her case is that such a document was obtained from her by practice of fraud, undue influence and misrepresentation. After vaguely alleging in the plaint that Abdul Rahman married Moosa Bi without pomp or publicity, the plaintiff alleged that Moosa Bi lived with Abdul Rahman as husband and wife for 35 years, and gave birth to the plaintiff and the fifth defendant. To cut at the root of this claim, the contesting defendants alleged that at the relevant time Moosa Bi was the wife of some other person. In those circumstances, it was indeed incumbent upon the plaintiff to file a reply statement setting forth what her case was with regard to the alleged first marriage of her mother. She did not do so.
10. The contesting defendants at first filed an affidavit of documents. In that affidavit they did not disclose the existence of a Nikha deed as regards the alleged first marriage of Moosa Bi. Subsequently they sought the leave of the Court and took out Application No. 1405 of 1964 for filing a further affidavit of documents in which they disclosed a Nikha deed about the marriage of Moosa Bi with one Mahomed Ansar Sahib. The Court allowed the reception of that affidavit. It was thereafter that the plaintiff came forward with Application No. 1470 of 1964 stating that after coming to know about the further affidavit of documents filed by the contesting defendants, she ransacked her old records and came across a thalaknama, that the said thalaknama had been preserved by her mother Moosa Bi and that the same should be received. The Court allowed that application. That document is Exhibit P-1. A certified extract from the nikha register, Exhibit D-1, produced by the defendants, shows that Moosa Bi was married by one Mahomed Ansar Sahib on 24th November, 1919. At that time, Moosa Bi had not attained puberty. On her behalf her paternal uncle, Mahomed Masthan Sahib, acted as her guardian. The plaintiff does not dispute her mother Moosa Bi had been married first by Mahomed Ansar Sahib. The plaintiff can succeed only if she proves that the said marriage between Moosa Bi and Mahomed Ansar Sahib was not subsisting at the time of the alleged marriage between Moosa Bi and Abdul Rahman. It is for the purpose of establishing that contention that the plaintiff relies upon Exhibit P-1. The contesting defendants attack Exhibit P-1 as a fabrication having been brought into existence by the plaintiff and her supporters recently for the purpose of this case.
11. Exhibit P-1 is in Tamil. It states that Mahomed Ansar Sahib had married Moosa Nachiar about 7 or 8 months back, that on account of various reasons in the two families and also for the reason that Moosa Nachiar had not yet attained puberty and was not of age, Mahamed Ansar Sahib, in the presence of the witnesses mentioned therein, dissolved the marriage by thalak. The witnesses, whose names are mentioned there, are Mahamed Silar and Mahomed Ghouse. These persons are not examined, and no explanation is given for their non-examination. The thalak is said to have been pronounced in the presence of Hajee Mohamed Faziluddin. The said Hajee is no more. The seal of the Khasi is affixed in Exhibit P-1. The contention of the contesting defendants is that this seal is also a fabrication. No witness present at the time of the alleged divorce is examined by the plaintiff. P.W. 1 is the present Khasi having jurisdiction over the George Town area in Madras. The previous Khasi was his father, Mohamed Faziluddin, whose name is mentioned in Exhibit P-1. P.W. 1 admittedly does not know personally about the thalak referred to in Exhibit P-1. He was called by the plaintiff only to prove the alleged signature and the seal of his father found in Exhibit P-1. His evidence is that his father was maintaining separate registers, one for nikha and another for thalak, that if parties knowing Urdu came to his father for effecting thalak, the matter would be entered in the register and a copy of the extract would be given to each, husband and wife, that if parties knowing only Tamil came for divorce, the thalaknama would be prepared in triplicate, that one will be given to the husband and one to the wife and the third would be kept along with the records in the Khasi office and that if such parties want the matter to be recorded in the nikha register, then they themselves would copy the matter in the register. He did not produce the nikha register maintained by his father in the year 1920 to find out whether Exhibit P-1 was copied in it or not. Nor was he summoned to produce the triplicate copy of Exhibit P-1, which should have been left with his father, if his evidence as regards the procedure followed by persons knowing only Tamil were true. He produced the nikha register maintained by him and that is Exhibit P-4. In that register, which is maintained in Urdu, there are two entries in Tamil. P.W. 1 does not say that he had occasion to see Exhibit P-1 before he gave evidence. On the question as to when exactly he saw it for the first time, he gave conflicting evidence. At one place he said that he saw the document for the first time after he got into the witness box. Another version is that he had seen it the day before he gave evidence. But, ultimately he said that he saw the document only after he got into the witness box. His evidence is that he was informed even before he was summoned, about the purpose for which he was going to give evidence. But curiously at that time he was not shown the document about which he was going to speak. After looking into the seal in Exhibit P-1, he said that the seal contained the words ' Government Khasi, servant of religion,' Following the religion of Islam, George Town, Madras'. But, in cross-examination he admits that his father was appointed as Government Khasi only in the year 1928 and that the seal issued by the Government was with him. When he was questioned as to what had happened to the seal affixed in Exhibit P-1, he said that he did not know anything about it. Admittedly, he had no occasion to see that seal at all. When he was questioned as to the basis upon which he asserted that the seal found in Exhibit P-1 was that of his father, he said that because that seal contained his father's name, designation and profession he was able to certify that it was his father's seal. There is no substance in this evidence. He also asserted that the signature found in Exhibit P-1 was that of his father. To support that version, he produced the passport, Exhibit P-2, and the power-of-attorney, Exhibit P-3, executed by his father, which, according to him, contain the signature of his father. I am unable to find any similarity between the purported signature of his father in Exhibit P-1 and those found in Exhibits P-2 and P-3. I do not think that this is a safe way of deciding the truth or otherwise of Exhibit P-1. On his own showing, it is clear from the evidence of P.W. 1 that his father could not have affixed the seal given to him after he became a Government Khasi in the year 1928 to a document which is said to have come into existence in the year 1920. It is, therefore, rightly contended on behalf of the contesting defendants that with the help of P.W. 1 the seal that was used by his father after he became Government Khasi in the year 1928 was affixed in Exhibit P-1.
12. To prove the alleged marriage between Moosa Bi and Abdul Rahman, the plaintiff examined Sheik Mohideen, P.W. 3, who claims to be a relation. I shall presently advert to his evidence on the question of marriage. For the present it is sufficient to refer to his evidence about the thalaknama. His version is that the said marriage took place in his house and that at that time Abdul Rahman showed the thalaknama in the presence of four or five persons and represented that there was nothing wrong in his marrying Moosa Bi as she had already been divorced by her first husband. This evidence was given evidently with a view to give an air of truth to Exhibit P-1. He was cross-examined in detail on that aspect. He gave conflicting versions regarding the custody of the thalaknama. One Musthan Sahib was the junior paternal uncle of Moosan Bi. P.W. 3 stated that the said Masthan Sahib and Abdul Rahman went to the Khasi and got the thalaknama. If that version were true, the document produced into Court could not have been the copy given to Moosa Bi after the alleged' divorce. But P.W. 3 changed his version-subsequently and said that the thalaknama was already with Masthan Sahib and that at the time of the marriage Abdul Rahman got it from Masthan Sahib and produced it before the persons who had assembled to witness the marriage. On the question as to whether Masthan Sahib was alive or not at the time of the alleged marriage of Moosa Bi and Abdul Rahman, P.W. 3 gave conflicting versions. At first he said that Masthan Sahib had died prior to the alleged marriage. Subsequently, he changed that version and said that Masthan Sahib was alive at the time of the marriage but did not attend the marriage. While P.W. 3 was questioned as to the need for showing the thalaknama at the time of the marriage, he said that the public, who attended the marriage, raised the question as to how a woman, who had already been married by another person, could be re-married and that thereupon only, to satisfy the public, Abdul Rahman produced the thalaknama. But at the same time, he would have it that before the marriage took place, negotiations went on, that all the members of the family were aware of the divorce and had no doubt whatsoever about it and that inasmuch as nobody entertained any doubt about the divorce, the marriage was fixed up. It is the allegation in the plaint that the alleged marriage was celebrated without pomp and publicity. In those circumstances, it passes one's Comprehension as to how the public would have attended the marriage and would have raised objections as Spoken to by P.W.3. It appears to me that P.W. 3 out of fertile imagination has invented an occasion for the alleged thalaknama being shown to a congregation, forgetting that in the nature of things such an incident was not likely. To avoid further questions being put to him, P.W. 3 said that Abdul Rahman by having the document in his hand read out the contents in Tamil. When he was questioned whether he took the document and read it by himself, he replied in the negative. The evidence of P.W. 3 on this aspect is artificial and unconvincing.
13. The evidence of the plaintiff is also unconvincing as regards Exhibit P-1. I have already referred to the absence of any pleading about the alleged divorce. The plaintiff was questioned as to when for the first time she saw the thalaknama. She said that her Advocate had impressed upon her about the importance of the thalaknama and that thereupon she promised to make a search and trace it out. Her version is that during the lifetime of her mother, she gave Exhibit P-1 to her and thereupon she placed it in the Quran and that when her advocate asked her about the thalaknama, she searched the Quoran and found it inside. To the further questions put to her she said that she is in the habit of reading Quran daily and that on all the occasions when she read the Quran she saw the thalaknama, kept inside the Quran. If this version were true, her version that she ransacked the old records and came across the thalaknama, is liable to be rejected. As already pointed out, the burden lies heavily upon the plaintiff to prove that the marriage between her mother Moosa Bi and Ansar Sahib was not subsisting at the time when she, the plaintiff, was born to Moosa Bi by Abdul Rahman, and in order to establish this contention she should have taken all the reasonable steps to establish that the said marriage had been dissolved. If really she, the plaintiff, had been seeing the thalaknama every day, it is most unlikely that she would not have handed it over to her husband or her sister's husband both of whom are admittedly helping her in the conduct of this case, knowing fully well that she was sought to be disinherited by the defendants on the ground that she was not the legitimate daughter of Abdul Rahman. As a matter of fact, the plaintiff admits that her attention was drawn by her advocate as regards the defence raised by the defendants and that the advocate impressed upon her the importance of the' thalaknama for the purpose of establishing her case. The plaintiff says that she promised to make a search of her records to find out the thalaknama. If her version that the thalaknama was kept in the Quran and was being seen by her every day were true, the first and foremost thing she would have done was to take it and hand it over to her advocate, not at the time when it was produced into Court, but at the earliest opportunity when the suit was filed. Having regard to these circumstances, I have no doubt in holding that Exhibit P-1 is not a true document and that it is not safe to be acted upon.
14. P.W. 3 is the only witness who speaks about the alleged marriage between Moosa Bi and Abdul Rahman. He claims relationship with Moosa Bi. According to him, the mother of Moosa Bi was the cousin sister of his father. He admits the marriage between Moosa Bi and Ansar Sahib. But he would, however, say that he did not attend that marriage. According to him, after Moosa Bi left her first husband, she took up residence in his house having regard to the relationship and subsequently went over to live with Abdul Rahman and Dawood Bi, the fourth defendant. During that time, according to him, illicit intimacy developed between Moosa Bi and Abdul Rahman, and to such intimacy the fourth defendant took objection. His further version is that the fourth defendant came over to his father who was then said to be alive and complained about the illicit intimacy and that the matter was talked over resulting in Abdul Rahman agreeing to marry Moosa Bi as his second wife. According to P.W. 3, though the relationship between Abdul Rahman and Moosa Bi was to start with illicit, marriage was settled upon because the fourth defendant Dawood Bi was not of sound health, and if Abdul Rahman married Moosa Bi, she could be of help to the family, and could run the family. It is also his evidence that the understanding was that after the marriage, Moosa Bi would join her sister and take care of her and run the family. This is, according to P.W. 3, the prime reason for Abdul Rahman marrying Moosa Bi as his second wife in spite of there being, objections to marrying the wife's sister. But, curiously, after the alleged marriage, Moosa Bi did not join her sister, but continued to live in a hut in Badsha Garden in Mylapore, on a rent of Rs. 7, per month, whereas the fourth defendant and Abdul Rahman were living in a house of their own at Pudupet, The evidence of P.W. 3 is full of inconsistencies, as to where Moosa Bi lived after the alleged marriage. His version is that the marriage took place in 59, Badsha Garden, which was said to be his own residence. At one place he says that even after the marriage Moosa Bi continued to live in that house for a period of 10 years and thereafter shifted to another house in the same locality. His another version is that for 20 years, Moosa Bi lived with Turn. He claims to have lived as a member of the family of Moosa Bi even in the house to which she is said to have shifted. If the object of Abdul Rahman in marrying Moosa Bi as his second wife was only to run the household on account of the alleged illness of the fourth defendant, it is unlikely that Moosa Bi would have been allowed to continue to live in the house of P.W. 3 for about 10 years after the marriage. Even after shifting from the house of P.W. 3, Moosa Bi admittedly did not live with the fourth defendant. She is said to have taken up a residence nearby on a rent of Rs. 7 per month. It is important to remember that in course of time Abdul Rahman amassed considerable properties including residential houses, in one of which the fourth defendant and her children were admittedly living. But strangely Moosa Bi lived only in a rented hut and did not live in any of the houses purchased by Abdul Rahman. The puerile explanation of P.W. 3 is that when called to live with the fourth defendant, Moosa Bi preferred to stay in a rented house saying that she wanted to live in a locality where she was familiar. The explanation has no substance.
15. The version of P.W. 3 is that to bring about harmony between the fourth defendant and Moosa Bi, his father settled the marriage between Abdul Rahman and Moosa Bi. If really that was the object and if really the intention of Abdul Rahman in marrying Moosa Bi was to find a suitable person to run the household, it is not likely that Moosa Bi would have preferred to live away from the family and was content to live: in a rented hut throughout her life. Admittedly, at the time of the alleged marriage Debar, elder brother of Mcosa Bi, and Masthan Sahib, paternal uncle of Moosa Bi, were alive, but those two close relations did not attend the alleged marriage. These persons were admittedly having houses of their own. But the alleged marriage did not take place in any of those houses. P.W. 3, who was questioned about these facts, did not offer any explanation. If the alleged marriage was the result of family discussion and settlement, it is unlikely that such close relations as the brother and paternal uncle would have avoided attending the marriage.
16. I have already indicated what, according to Mahomedan law, are, the essentials of a valid marriage. The details of the ceremony are set out by Mir Ahmed, J., in Ghulam Kuba Bibi v. Mohammad Shafi A.I.R. 1940 Pesh. 2, as follows:.it is customary to send a relation of the woman to her inside the house accompanied by two witnesses. The relation asks the girl within the hearing of the witnesses whether she authorises him to agree to the marriage on her behalf for the dower money offered by the husband. She explains to her the details of the dower proposed. When the girl says 'yes' or signifies her consent by some other method, the three persons come out. The future husband and those three persons are then placed before the Mullah. The Mullah asks the boy whether he offers to marry the girl on payment of the specified dower. He says 'yes'. Then the relation, who had gone inside, tells the Mullah that he is the agent of the girl. The Mullah asks him whether he agrees to the marriage on payment of the specified dower. The relation says 'yes'. The witnesses are present there so that if the Mullah has any doubt he should question them as to whether the relation is a duly authorised agent of the girl. Directly both sides have said 'yes' the Mullah reads the scriptures and the marriage is complete.
When P.W. 3 was questioned about the details of the marriage, he said that no Khazi officiated in the marriage as Abdul Rahman married his wife's sister. It is no doubt true that the presence of, a Khazi is not absolutely essential for the validity of a marriage. But the version of P.W. 3 is that one Aboobacker recited fathia. That Aboobacker is not examined and he is said to be not a relation. According to P.W. 3, some residents of Pudupet and Mylapore ware also invited and those persons were present at the time of the marriage. None of them is called to corroborate his version. P.W 3 was questioned as to whether in addition to the reciting of fathia what other rituals were performed. He said that distribution of sweets, laddu and pan-supari was made, that fathia was recited, that dua was asked for, and that blessings were given by the elders saying that the couple should live long. He wound up his answer by saying that nothing else was done. Hardly what according to P.W. 3 were done are sufficient to satisfy the requirements of Mahomedan law for the validity of a marriage. No doubt, the absence of a witness may render the marriage only irregular, but certainly the other formalities, that is, asking the girl and other details referred to above, are indispensable and there can be no valid marriage without the essential requirements being complied with.
17. On behalf of the plaintiff, comment was made upon the non-examination of the fourth defendant. It was contended that from her non-examination, necessary adverse inference should be drawn against her. There is no substance in this argument. The reason for the non-examination of the fourth defendant is given by the plaintiff herself by admitting that the fourth defendant is mentally ill. Therefore, nothing turns upon the non-examination of the fourth defendant.
18. If really Abdul Rahman had married Moosa Bi as his second wife, one would expect him to take up residence with Moosa Bi even though the latter might have preferred to live in a rented house. But the admission of P.W. 3 is that even after the alleged marriage, Abdul Rahman and the fourth defendant continued to live in their house at Pudupet, whereas Moosa Bi was living in a rented house in Badsha Garden. His further version is that Abdul Rahman only visited Moosa Bi in her residence. This mode of visiting alone continued till the death of Moosa Bi. This is incompatible with the existence of marital relationship. On the other hand, such visits are only consistent with the case of the contesting defendants that there was only illicit intimacy between Abdul Rahman and Moosa Bi. It is the case of the plaintiff that Abdul Rahman purchased properties not only in his name but also in the names of defendants 1 to 4. The contesting defendants do not admit that the properties standing in their names were purchased by Abdul Rahman. Conceding for the sake of argument what the plaintiff contends is true, it should be examined whether Abdul Rahman similarly bestowed his bounty on Moosa Bi and her children. Significantly not a single item of property was purchased by Abdul Rahman either in the name of Moosa Bi or in the names of the plaintiff and the fifth defendant. That again is consistent with the defence that Abdul Rahman did not give Moosa Bi the status of a wife. The fifth defendant is elder to the third defendant by 8 years. The latter was married to the ninth defendant even during the life-time of her father, Abdul Rahman. But, though the fifth defendant was elder by eight years, she remained unmarried at the time of the death of Abdul Rahman, and her marriage was celebrated only after the death of Abdul Rahman. This circumstance is mentioned on behalf of the contesting defendants as improbabilising the case that the fifth defendant is the legitimate daughter of Abdul Rahman. When the plaintiff was questioned about this circumstance, she said that the third defendant attained puberty before the fifth defendant attained puberty and therefore her marriage was celebrated first. Hardly this can be a satisfactory reason for celebrating the marriage of a younger sister before the marriage of the elder sister. But a suggestion was made to the second defendant on behalf of the plaintiff in cross-examination to the effect that the third defendant became friendly with the ninth defendant even before the marriage and that, therefore, her marriage was celebrated first. The second defendant denied that suggestion. That suggestion appears to be devoid of truth. The circumstance that the fifth defendant, who is elder to the third defendant by eight years, was married long after the marriage of the third defendant, is not consistent with the normal practice obtaining in a family where the elder girl would be married before the younger girl is married. This circumstance supports the case of the contesting defendants that the plaintiff and the fifth defendant are not the half sisters of the third defendant.
19. Reliance is placed on behalf of the plaintiff upon the fact that Abdul Rahman continued to have cohabitation with Moosa Bi for a long period and that from that circumstance, the presumption of lawful marriage could be drawn. No doubt, as pointed out by the Supreme Court in Mohamed Amin and Ors. v. Vakil Ahmed and Ors. : 1SCR1133 , if a man and a woman had cohabited continuously and for a prolonged period, the presumption of lawful marriage would arise and it would be sufficient to establish a lawful marriage between them. But, this is, however, subject to the condition that there should not have been an unsur-mountable obstacle to a marriage. Mere continuance of cohabitation is not sufficient to raise a presumption of marriage. To raise such a presumption, it is also necessary that there should be not only continued cohabitation but the continued cohabitation under circumstances from which it could reasonably be inferred that the cohabitation was a cohabitation as a man and wife without obstacle to the form of marriage being gone through between them. In this case, there was the obstacle that Moosa Bi was the wife of another person and the said marital relationship is not proved to have been terminated at any time validly.
20. Abdul Rahman celebrated the marriage of the plaintiff on 14th November, 194.6. That marriage was attended by P.W. 3. Exhibit P-4 is the nikha register in which the marriage is recorded. The name of the bride is mentioned as Fathima Bi, daughter of Abdul Rahman Sahib. The signature of Abdul Rahman in the nikha register is Exhibit P-4 (c). Strong reliance is placed on behalf of the plaintiff upon the description of the bride in the nikha register as showing that Abdul Rahman himself acknowledged the plaintiff as his daughter, and it is contended that such acknowledgment is sufficient to establish the paternity of the plaintiff. I have already referred to the decision of the Privy Council in Habibur Rahman v. Altaf Ali ILR(1921) Cal. 856, where their Lordships have recognised the use of presumption for proving legitimacy in case where direct proof of marriage is not possible. Acknowledgment of paternity is no doubt substantive evidence--vide Sadik Husain Khan v. Hashim Ali Khan 31 M.L.J. 607 : 36 I.C. 104 : L.R. (1916) 43 IndAp 212. If a person acknowledges another to be his son or daughter, he must be taken to mean his legitimate son or daughter, unless the contrary appears--vide Fuzeelun Beebee v. Omdah Beebee and Shah Jonab Ali (1868) 10 W.R. (C.R.)469. But where marriage is disproved or where marriage is not possible at all, mere acknowledgment of paternity is insufficient to establish legitimacy. As pointed out by the Privy Council in Fatma Binti Hafidth v. Administrator General, Zanzibar (1949) 2 M.L J.484: A.I.R. 1949 P.C. 254, in cases where the question to be determined is whether there has been a marriage between the parents, something more than a mere acknowledgment of paternity is required. The mere admission of paternity in no way establishes anything but a casual union and more is required to show the existence of the marriage bond if the existence of that bond is to be derived from association alone without any preceeding ceremony. The father may accept his parenthood without intending to make the child legitimate. Once, however, a marriage is established, an acknowledgment of paternity is enough to hold the marriage to be valid. Though acknowledgment of paternity is substantive evidence, it does not raise an irrebuttable presumption. The acknowledgment merely proceeds upon the hypothesis of a lawful union between the parents. But, where in a case like this, the union, to start with, was illicit, strong evidence is required to show that the acknowledgment was made with the intention of conferring legitimacy. The presumption of legitimacy is destroyed on account of the initial illicit relationship that admittedly existed between the plaintiff's mother and Abdul Rahman. I have already pointed out that the evidence of P.W. 3 regarding the alleged marriage between Moosa Bi and Abdul Rahman is not believable for several reasons. In these circumstances, the mere admission by Abdul Rahman that the plaintiff is his daughter, does not mean that the plaintiff was his legitimate daughter. Even an illegitimate daughter is also a daughter. The fact that the plaintiff is not described in the nikha register Exhibit P-4, as an illegitimate daughter, cannot by itself entitle her to claim legitimacy.
21. After the death of Abdul Rahman, defendants 1 and 2 celebrated the marriage of the fifth defendant. Exhibit P-16 is the marriage invitation issued by them. In that invitation, it is stated that the fifth defendant was the daughter of Abdul Rahman and sister of defendants 1 and 2. All that I have said about the description of the plaintiff, found in the register Exhibit P-4, apply equally to the description of the fifth defendant in the aforesaid marriage invitation. The evidence of the second defendant is that because the fifth defendant was brought up by his father, and was also the daughter of their aunt, she was described as the daughter of their father and as their sister. At the time of the marriage of the fifth defendant, her mother was no more and there was no other relation to celebrate her marriage. In those circumstances, there is no reason to disbelieve the evidence of the second defendant.
22. Mr. Viswanathan, appearing for the plaintiff, in the course of his arguments, put forward a new point which was not thought of either in the plaint or in the course of the evidence. He contended that as shown in the nikha register Exhibit D-1 relating to the marriage of Moosa Bi with Mahomed Ansar Saheb, Moosa Bi was a minor represented by her paternal uncle and that under the Mahomedan law, it was open to Moosa Bi to repudiate that marriage. He contended that from the fact that she married Abdul Rahman, it can be taken that she repudiated the first marriage. Under the Mahomedan law, a boy or a girl, who has not attained puberty is not competent to enter into a contract of marriage, but he or she may be contracted in marriage by his or her guardian. The right to contract a minor in marriage belongs successively to (1) father, (2) paternal grandfather, how highsoever, and (3) brother and other male relations on the father's side in order of inheritance. When a minor has been contracted in marriage by the father or the father's father, the marriage is valid and binding and cannot be annulled by the minor on attaining puberty. But, where a marriage is contracted for a minor by any guardian other than the father or father's father, the minor has the option to repudiate the marriage on attaining puberty. This right is technically called 'option of puberty'. By the Dissolution of Muslims Marriages Act, 1939, all restrictions on the option of puberty in the case of a minor girl whose marriage has been arranged by a father or grandfather have been abolished. That Act does not apply to this case. Under that Act, the right to repudiate the marriage should be exercised before the person attains the age of 18 provided that the marriage has not been consummated. In paragraph 275 the learned author Mulla in 'Principles of Mahomedan Law'--16th Edition, observed thus:
The mere exercise of the option of repudiation does not operate as a dissolution of the marriage. The repudation must be confirmed by the Court. Until then, the marriage subsists, and if either party to the marriage dies, the other will inherit from him or from her, as the case may be.
Decisions are not uniform on the question as to whether an order of the Court is necessary to give effect to the repudiation. It is unnecessary to go into that question in this case as the exercise of the right of option of puberty is a matter of pleading and proof, and there is no evidence to show that the marriage between Moosa Bi and Mahomed Anser Sahib was not consummated, except what we find in the disputed thalaknama Exhibit P-1 in which it is said that Moosa Bi was a minor. I have already pointed out that no reliance can be placed upon this document. There is no substance in the argument that the alleged marriage between Moosa Bi and Abdul Rahman should itself be taken as an act of repudiation, for, that marriage itself is not proved and it is begging the question to rely upon that alleged marriage as establishing the repudiation of the first marriage. There is also the further fact that if Moosa Bi had repudiated the marriage, there was obviously no need for the alleged divorce upon which the antire case of the plaintiff rests. Thus, there is not only no pleading and evidence on the exercise of 'option of puberty' but also then is the inconsistency, arising cut of the case of divorce which the plaintiff has put forward. Therefore, there is no substance in the belated argument advanced on behalf of the plaintiff.
23. To recapitulate the foregoing discussion:--The plaintiff has not come forward with a specific case of divorce between Moosa Bi and Mahomed Ansar Sahib, though she was put on notice that her mother had been already married to another person. There is no proof of divorce. Admittedly, the intimacy between Moosa Bi and Abdul Rahman was to start with, illicit. There is no proof that the relationship was legalised by a valid marriage. Throughout her life, Moosa Bi was kept in a hut away from the family house and she did not participate as a member of the family. At no time Abdul Rahman recognised Moosa Bi as his wife. The acknowledgment of the plaintiff and the fifth defendant by Abdul Rahman as his daughters is in no way inconsistent with the case of the defendants that they ware his illegitimate daughters. It was obviously on account of all these circumstances that the plaintiff was content to call herself as the foster daughter of Abdul Rahman when she executed the release deed Exhibit P-14, to which I shall presently refer. For all these reasons, T find issues 1 to 3 against the plaintiff.
24. Issues 4 to 6 and 11:--Exhibit P-14 dated 2nd May, 1958, is a deed of release executed by the plaintiff in favour of defendants 1 to 4 in respect of the properties of Abdul Rahman. In that release deed the plaintiff stated that she was brought up by Abdul Rahman as his foster daughter, that she had no manner of title to any of the properties of Abdul Rahman and that at the request of defendants 1 to 4 she executed the release deed. The case of the plaintiff, as put forward in the 'plaint, is that she was made to execute the document by practice of fraud, misrepresentation and undue influence. Her case is that she was not put on notice of the contents and effect of the document and that she came to know it only subsequently. On the other hand, the case of the contesting defendants is that fully realising her status the plaintiff executed the release deed. The document is in English. The plaintiff is a markswoman. Therefore, the burden lies upon the defendants to prove that the document was explained and interpreted to her and was executed with knowledge of its contents--vide Kwamin Bassayin v. Bendentu II . An attempt was made in the course of the argument to the effect that the plaintiff is, besides being illiterate, a purdahnasin lady and that greater responsibility was there on the defendants to convince the Court that the plaintiff voluntarily executed the document knowing its effect. Such a plea does not find a place in the plaint, and as such it is unnecessary to consider it. In support of her case put forward in the plaint the plaintiff gave evidence. She said that after the death of Abdul Rahman she was taken by defendants 1 to 4 to their house, that those defendants represented that a document was necessary from her to enable them to collect the outstandings of Abdul Rahman and that believing that representation she executed the document. This version does not find a place in the plaint. The plaintiff seeks to have the release deed set aside on the ground of fraud, misrepresentation and coercion which are circumstances which would normally invalidate a| transaction. But the plaint is singularly silent as to the details of the alleged fraud, coercion and misrepresentation. The law enjoins a duty upon the plaintiff under Order 6, rule 4 of the Code of Civil Procedure, to set out the details of the alleged invalidating circumstances. The following observation of the Superme Court in Bishundeo Narain v. Seogeni Rai : 2SCR548 , is useful in this connection:.if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.
On this simple ground of absence of necessary pleadings as to the alleged practice of fraud, coercion and misrepresentation, the plaintiff is bound to fail as regards her attack on the release deed.
25. The release deed was attested by one Govindarajan and Nagoor Pichai. The said Nagoor Pichai was also an indentifying witness before the Sub-Registrar at the time of the registration of the document. The said Nagoor Pichai is the ninth defendant. The plaintiff admits that Nagoor Pichai is her aunt's son and that there was always very good relationship between them. As a matter of fact, at the time when she gave evidence she admitted the continued existence of good relationship. She does not say as to why he should have joined hands with the contesting defendants in obtaining the document from her by keeping her in darkness as to its contents and effect.
26. The evidence of the second defendant, D.W. 3, shows that the plaintiff approached him with a request to give her something as she used to receive some bounty from his father during his lifetime, that he consulted his brother and others and offered to give a house property and that the plaintiff agreed to accept that offer. He also said that to avoid any possible dispute, he asked the plaintiff to execute a deed of release and that accordingly the plaintiff executed the deed of release. His evidence also shows that when he talked over the matter to the plaintiff's husband, the latter insisted that the property which was proposed to be given to the plaintiff should be conveyed in favour of the plaintiff, though he, the second defendant, was not willing to accept that suggestion, but was willing to execute a conveyance in favour of the children of the plaintiff. That, according to the second defendant, is the reason why the plaintiff's husband did not attest Exhibit P-14. Exhibit P-15 is a registration copy of a settlement deed executed by defendants 1 to 4 in favour of defendants 6 to 8, children of the plaintiff. Under that settlement, the plaintiff was constituted as the guardian of her minor children. The property comprised in the settlement belonged to Abdul Rahman. The evidence of the plaintiff shows that she accepted the settlement oh behalf of her children. The property comprised in the settlement is 67, Labbai Street. The plaintiff admits that after the settlement deed, she began to occupy a portion of that building, and that the rent payable by the tenants occupying the remaining portions was being collected and paid over to her. She says that the said collection was made by the second defendant for some time and thereafter by her husband She, no doubt, says that she was not aware that the house had been settled on her children. She cannot be believed in that respect It is not her case that when money was paid to her she was made to understand that such payment represented her share in the income of the estate of Abdul Rahman. On the other hand, a perusal of her evidence shows that she was fully conscious of the fact that what was paid to her represented the rent paid by the tenants occupying the remaining portions of 67, Labbai Street. That circumstance is consistent with the case of the contesting defendants that the plaintiff accepted the settlement, took up residence in a portion and received the rent realised from the remaining portion. For these reasons, I find issues 4 to 6 and 11 against the plaintiff.
27. Issue 7 does not arise, as the fifth defendant, on whose pleading this has arisen, has settled her disputes with the contesting defendants.
28. Issues 8 and 9 :--The plaint B and C schedules each consist of 6 items of immovable properties. The controversy is as to whether all these belonged to Abdul Rahman or not. A decision on this controversy is necessary even though the plaintiff is not entitled to any relief, because a decreehas to be passed in favour of the third defendant as regards her share in the properties that belonged to her father. Some properties stand in the name of Abdul Rahman and some do not. Item 1 of the B schedule was purchased by Abdul Rahman under Exhibit D-3 on 10th January, 1938. Item 2 was purchased in the names of Abdul Rahman and fourth defendant under Exhibit D-4 dated 17th January, 1949. In the absence of any evidence to show that the name of the fourth defendant was included only nominally, it has to be held that both the vendees are equally entitled to the property. As regards item 3, there is no document of title, and the contesting defendants do not dispute the fact that this item belonged to Abdul Rahman. Item 4 was purchased by Abdul Rahman under sale deed Exhibit D-10 dated 29th August, 1957. Item 5 was purchased by defendants 1, 2 and 4 under Exhibit D-2 dated 5th April, 1935. The case alleged in the plaint is that these defendants had no means and that the property was purchased by Abdul Rahman with his funds. Though the plaintiff gave evidence to the effect that all the properties were purchased only by Abdul Rahman, no satisfactory reason is given as to why Abdul Rahman purchased some properties in his name and some in the names of others. The evidence of the second defendant shows that he had his own means as also his brother the first defendant. Therefore, there is no reason to hold why the ostensible title as regards item 5 should not prevail. As regards item 6, though there is no document, the contesting defendants admit that it belonged to Abdul Rahman. Thus, out of the six items described in the plaint B Schedule, those that belonged to Abdul Rahman were items 1, 3, 4, 6 and half share in item 2.
29. The title to item 1 of the G Schedule stands in the name of the second defendant--vide Exhibit D-7, dated 17th March, 1956. The title to item 2 stands in the name of the ninth defendant--Exhibit D-15. There is no document of title as regards item 3. But the second defendant claims it as his own. There is no evidence to show that it belonged to the estate of Abdul Rahman. The second defendant claims title to item 4 and that claim is established by the title deed Exhibit D-8 dated 31st January, 1957. The title to item 5 stands in the names of defendants 1 to 4--vide Exhibit D-5. Item 6 stands in the name of the second defendant--vide Exhibit D-12. Thus, the evidence does not establish that any of the items in the plaint C Schedule belonged to Abdul Rahman.
30. The plaint D Schedule sets out five items of outstandings, which according to the allegation in the plaint, belonged to Abdul Rahman, The contesting defendants do not admit that claim. The second defendant claims item 1 which is a mortgage debt due under Exhibit D-9 dated 16th March, 1957 executed by a person of Ranipet. I have already referred to the evidence of the second defendant that he has his own independent earnings. There is no evidence to rebut that contention. Item 2 of that schedule is a sum of Rs. 8,000 said to be due from Maracoir Brothers of Pudupet. The document securing the loan is not produced. But there is a reference to the mortgage payable by those parties to the second defendant with a principal of Rs. 7,500 under the sale deed. Exhibit P-21 obtained by the fourth defendant on 30th December, 1961. Under that sale deed, the fourth defendant was directed to discharge the mortgage due to the second defendant. There is no evidence to show that either the mortgage or the sale amount belonged to the estate of Abdul Rahman. There is no evidence as regards the remaining three items described in the plaint D Schedule. Thus, none of the items in that schedule is available for partition. The plaint E Schedule is said to consist of stock in trade which is valued at Rs. 50,000. There is no evidence to support this claim and therefore my finding in that the said schedule is not available for partition.
31. For the foregoing reasons, I find that the items available for partition are items 1, 3, 4, 6 and half share of item 2 of the plaint B Schedule.
32. Issues 12 and 13:--There is a vague allegation in the written statement of the fourth defendant that mahar amount is due to her. But no evidence has been let in that respect. It is also alleged by defendants 1, 2 and 4 that Abdul Rahman left a debt of Rs. 1,800 and that they had discharged it. On these two issues there is no evidence. These two questions are, therefore, left open for adjudication in the final decree proceedings. If the mahar amount is payable to the fourth defendant and if defendants 1, 2 and 4 had discharged the debt pleaded by them, necessary provision will be made in the final decree as regards these items.
33. Issues 14 and 15:--The tenth defendant claims the benefits of the Madras City Tenants' Protection Act In item 4 of the plaint B Schedule. His claim is said to have been established in the judgment of the City Civil Court, Madras, in O.S. No. 1653 of 1937. A copy of the judgment in that suit is not produced. However, the parties before me did not controvert the claim of the tenth defendant. Therefore, item 4 shall be partitioned subject to the said right of the tenth defendant.
34. Issue No. 10:--In view of my finding that the plaintiff and the fifth defendant are not the legitimate daughters of Abdul Rahman, it follows that the heirs to the estate of Abdul Rahman are defendants 1 to 4 (defendants 1 and 2 sons, the third defendant daughter and the fourth defendant his widoow). Defendants 1 to 4 are entitled to shares as follows:
Defendant 1's share : 14/40Defendant 2's share : 14/40Defendant 3's share : 7/40Defendant 4's share : 5/40
35. On 6th January, 1960, the third defendant executed a deed of release in favour of defendants 1, 2 and 4 giving up her interest in the estate of her father in consideration of defendants 1, 2 and 4 executing a settlement in favour of her minor daughter, nth defendant. That settlement is in respect of the house property No. 17, Venkatachala Achari Street, Pudupet, Madras. That property is not included in the suit. Defendants 1, 2 and 4 on the one hand and the third defendant on the other have entered into a compromise in and by virtue of which the parties have agreed that the release deed executed by the third defendant and the settlement deed executed by defendants 1, 2 and 4 shall be ignored and shall not be acted upon and that No. 17, Venkatachala Achari Street, Pudupet, Madras, shall be brought into the family hotchpot to be made available for division among the heirs of Abdul Rahman. The 11th defendant is represented by Mr. Ahmed Sheriff, Advocate, who was appointed Court guardian. The said guardian has filed a statement setting out the aforesaid compromise and certifying that the compromise is beneficial to the interest of the minor inasmuch as under the compromise the third defendant gets her legitimate share in the estate of her father and that ultimately, the 11th defendant being the daughter of the third defendant will get that share. The compromise is sanctioned and recorded. It would thus follow that the properties available for partition in view of the compromise are items 1, 3, 4, 6 and half share of item 2 of the plaint B Schedule and the aforesaid 17, Venkatachala Achari Street, Pudupet, Madras. Defendants 1 to 4 are entitled to shares as already indicated.
36. Issue 16:--In the result, there will be a preliminary decree for partition of the aforesaid items and for allotment of the aforesaid share of the third defendant in those items. The plaintiff will pay the Court-fee payable on the plaint, she having been permitted to sue in forma pauperis. The parties will bear their own costs in other, respects. The parties are at liberty to apply for the appointment of a Commissioner to effect division.