1. This is an appeal from the judgment of Greaves J. The plaintiff Habibar Rabhman Chowdhury has been adjudicated insolvent since the institution of the appeal and the Official Assignee, having refused to be joined as an appellant, has been added as a pro forma respondent.
2. It was alleged in the amended plaint that the above-mentioned plaintiff had for valuable consideration sold and assigned to the other plaintiff, Rebecca J. Hyam, one half of his right, title and interest in the estate of Nawab Syed Abdus Sobhan Chowdhury of Bogra, of whom the first plaintiff claimed to be the legitimate son.
3. The appeal, therefore, was prosecuted by Mrs. Hyam alone.
4. The suit was brought by the first plaintiff, who may be called for the sake of convenience 'Habib,' to obtain a declaration that he is the sole heir of the said Nawab Sobhan and as such is and has since his death and up to the 11th of October, 1915, been entitled to possession and enjoyment of the estate and properties left by him and of the rents, issues and profits thereof and that since the 11th of October, 1915, the plaintiffs Habib and Mrs. Hyam are each entitled to a moiety or half shave in the estate of the said deceased Nawab. The plaint included a prayer for other consequential reliefs. The plaintiff alleged in his plaint that Nawab Sobhan died on the 2nd July, 1915, possessed of and leaving a large estate consisting of moveable and immoveable properties partly within and partly outside Calcutta and that the Nawab was a Mahomedan governed by the Sunni School of Mahomedan law.
5. It was further alleged that the Nawab had two wives, who predeceased him: the first being Tahurunnessa, by whom he had one daughter Altafunnessa, who died in the lifetime of her father, leaving one son only, viz., the defendant Altaf Ali Chowdhury; and the second wife being Mozelle Cohen, a Jewess converted to the Mahomedan faith.
6. It was alleged that by Mozelle Cohen the late Nawab Sobhan had two children, viz., a daughter named Sakina alias Hanna and one son, viz., the plaintiff.
7. The plaintiffs alleged that the defendants wrongfully took possession of the late Nawab's estate and wrongfully excluded the plaintiff Habib from possession thereof, and denied the right and title of the plaintiff Habib thereto.
8. The defendants to the suit are Altaf Ali, who is a son of Altafunnessa, Ahmed Hossain, Mahomed Hossain and Noorul Hossain, sons of Abdul Jabbar, a brother of the late Nawab Sobhan. The main defences of the defendants were that the late Nawab Sobhan was the mutwali of wakf estate created by his wife Tahurunnessa but that he left no property at his death to which he was entitled in his own right; that the plaintiff Habib was known as Elias Habib Cohen until he changed his name and that he was no relation of the late Nawab and that the late Nawab never married Mozelle Cohen. It is now admitted that Habib is the son of the late Nawab and Mozelle Cohen but it is denied that he is legitimate.
9. The plaint was filed on the 26th August, 1915, and on the 28th February, 1916, it was amended by order of the Court by inserting paragraph 7(a) whereby the plaintiffs alleged that the late Nawab acknowledged Habib as his legitimate son, and Habib stated that in case he failed to prove the marriage between his father and mother he would rely on the said legitimation by acknowledgment as entitling him to the estate. Evidence was admitted as to acts of acknowledgment, not stated in the abovementioned paragraph for the reasons mentioned by Greaves J. in his judgment.
10. Interrogatories were admitted to the plaintiff Habib and in answer to interrogatory 4 he stated that his mother was married twice, first to his father, the late Nawab Sobhan: that he did not know the date and place of the marriage: that he was informed that she was married again to Aga Mohiuddin Khan and that this latter marriage took place in or about the year 1899 and that he did not know where it took place.
11. In answer to interrogatory No. 7 he said that Mozelle Cohen was converted to the Mahomedan faith at the time of her marriage with his father, but that he did not know the dale on which she so changed her religion or the place.
12. The issues raised at the trial were as follows:
(1) Was Mozelle Cohen married to Sobhan?
(2) If so, was Habib the legitimate son of Sobhan and Mozelle Cohen?
(3) What properties did Sobhan die possessed of?
(4) Are the plaintiffs entitled to any properties in the possession of the defendants, or any of them?
(5) Is the plaintiff, Rebecca Joseph Hyam, a benamidar for her husband?
(6) Was there any acknowledgment as pleaded in paragraph 7(a) of the plaint, and if so, what is its legal effect?
13. The learned Counsel appearing for Mrs. Hyam on the appeal, argued that the issues are not the right ones: but as far as I have been able to discover, no objection was raised at the trial when the issues were settled, and in my judgment, in view of the pleadings on which the parties went to trial, the issues covered the matters in dispute between them.
14. The material issues on this appeal are Nos. 1, 2, and 6.
15. The learned Judge on the first issue came to the conclusion that upon the evidence 'the long connection of Sobhan and Mozelle was inconsistent with the 'relation of husband and. wife and that Mozelle, upon 'the evidence, proved to be merely his concubine and 'that Mozelle Cohen was not married to the deceased 'Nawab' and as to the second he held 'that the 'plaintiff Habib was not the legitimate son of the 'Nawab and Mozelle Cohen.'
16. Learned counsel for the appellant has argued that these findings are wrong and should not be supported.
17. With regard to the first issue, viz., whether Mozelle Cohen was married to Sobhan, it is noticeable that the plaintiffs were not able to indicate any date when or place where the alleged marriage is supposed to have taken place: and the case put forward by them has varied as the hearing of the suit proceeded.
18. By his answer to the 10th interrogatory Habib put forward the case that the marriage took place according to Mahomedan rites in 1884 in Calcutta in his evidence-in-chief (at page 33) he adhered to that case. This case apparently was abandoned during the hearing as the date of the alleged marriage was suggested as 1891 and on the hearing of the appeal Mr. Hyam, for the appellant, urged that the marriage took place in 1888 and that the entry in the late Nawab's diary under date 8th Falgoon, 1294 (which we were informed is equivalent to 11th February, 1888) 'Moseley engaged, meant that the late Nawab Sobhan married her on that date.
19. In all the evidence there is no trace of any ceremony having been performed, but in this connection it is necessary to remember the learned Counsel Mr. Hyam's contention that a Mahomedan marriage may be contracted in a simple and informal manner by agreement of the parties.
20. There are certain facts which are proved by the evidence.
21. It appears that the Nawab Sobhan first made the acquaintance of Mozelle Cohen in 1884. She was then living with her parents in 161, Lower Chitpore Road, her father Benjamin G. Cohen being alleged to be a poor man and a seller of cheese; the Nawab Sobhan occupied the upper portion of the house. It does not appear whether the Nawab's wife Tahurunnessa lived with him at this address. An intimacy developed between Nawab Sobhan and Mozelle Cohen who was then a girl about 12 or 13 years old; whether it was the late Nawab who first seduced her is not clear, but it is in evidence that in 1884 he used to love her, and that she used frequently to go upstairs to him. In 1885 Mozelle Cohen and her sister Habiba Cohen went to live at 13, Radha Bazar Lane, the premises being occupied under an agreement for one year from October, 1885, to 30th September, 1886, in the name of Benjamin Cohen the father and Habiba. This was cancelled on 1st August, 1886, and a further agreement for an occupancy for 4 years was entered into.
22. It appears from the diary of the late Nawab that in 1886 he was making a monthly allowance of Rs. 100 to Mozelle Cohen who is entered in the diary under date 6th January as 'Miss Moseley' and it was not seriously disputed on the bearing of the appeal that at that time Mozelle was the kept mistress of the late Nawab Sobhan.
23. This relationship continued until about February, 1887, when it appears to have come to an end for the time being.
24. On 14th September, 1887, Mozelle was married to one Joseph Abraham Ger who is alleged to have been a convert to the Jewish faith: the marriage ceremony, according to the certificate, being performed by Minister S.W. Lanayodo.
25. A witness named E.A. Abraham gave evidence to the effect that after 4 or 5 months J.A. Ger divorced his wife Mozelle by the 'talak.'
26. In February, 1888, the relations between Mozelle and the late Nawab Sobhan were resumed.
27. It appears that after Mozelle and her sister went to 13, Radha Bazar Lane, the parents also went to live there.
28. Nawab Sobhan did not visit Mozelle at Radha Bazar Lane, but the evidence is that whenever he wanted her, he would send for her and have her brought over to his own house in Weston Street privately.
29. The entry already referred to under date 19th February, 1888, refers to ' Moseley engaged.' Mr. Hyam would have us believe that this means that the late Nawab Sobhan married, her at this date: this I cannot accept: I find no justification for it in the word 'engaged' or in the surrounding circumstances as disclosed by the evidence.
30. On 31st December, 1890, Nawab Sobhan 'dismissed' Mozelle: the entry in the diary being 'paid salary 'in full to Mosley Bibi, dismissed from date.'
31. Mr. Hyam for the appellant urged that this meant that the late Nawab Sobhan 'divorced' Mozelle on this date.
32. This again I cannot accept. On the evidence I have no doubt that up to this date at all events Mozelle was no more than a kept mistress.
33. In June, 1891, there is an entry in the late Nawab's diary 're-engaged from the month of January of the 'year 1891' and there are entries of two sums of Rs. 100 each: and the total of Rs. 200 is mentioned as having been paid into the Savings Bank at Bogra,
34. Mr. Hyam argued from this that either the divorce was withdrawn, in January, 1891, by the late Nawab or he married Mozelle again.
35. I see no justification for this conclusion. The entry is 're-engaged' and the same monthly payment is made and the natural conclusion to draw is that the irregular relations which existed before the dismissal in 1890 were resumed, and that Mozelle continued to be a kept mistress.
36. The entries in the Savings Bank Book are material. These entries are obviously made by the Bank official, but of course upon a declaration by the person who opened the account.
37. Mozelle Cohen is there described as a Jew, and a widow and her name as Bibi Moozlie Cohen. The account was opened on the 13th March, 1891, and in March two sums of Rs. 100 each were paid in: these two sums are obviously the sums referred to in the late Nawab's diary, to which 1 have already referred.
38. These entries are inconsistent with the appellant's case that at that time Mozelle was a Mahomedan and the wife of the late Nawab.
39. It is clear to my mind that up to June, 1891, Mozelle was not married to the late Nawab.
40. On 15th October, 1891, the daughter Sakina (or Hanna) was born and I think there is no doubt she was the illegitimate child of the late Nawab.
41. The relations between Mozelle and the late Nawab continued. and on 16th May, 1893, the plaintiff Habib was born: the monthly allowance, or salary as it is called in some places, was continued: Mozelle continued to live at Radha Bazar Lane and on the 23rd January, 1893, she entered into an agreement for renting 13, Radha Bazar Lane for four years, in the name of Muzlie Benjamin Cohen, and in the registration note at the end of the agreement she is described as the wife of Ezekiel Benjamin Cohen. At this time she must have been obviously pregnant (Habib was born in May, 1893) and that may be the reason for her being described as the 'wife' of E.B. Cohen.
42. In 1899, according to the plaintiff's answer to the 4th interogatory. Mozelle is alleged to have married one Aga Mohiuddin Khan; there is no evidence of this marriage; but in 1899 there was a further agreement between Mozelle and the landlord of 13, Radha Bazar Lane, which, she executed as Muzlie B. Cohen and she was identified by Aga Golam Mohiuddin.
43. From the solicitor's bill rendered to the late Nawab Sobhan by Messrs Sanderson & Co. (Ex. 19), it appears that in June, 1899, the late Nawab informed the solicitors that the house 21, Khyroo Lane, had been purchased for Mrs. Cohen and on the 20th June, 1899, the agreement for the purchase was executed by Mozelle as Muzlie B. Cohen.
44. After 1899 the children Sakina and Habib continued to live with Mozelle and if it be the fact, as alleged by the plaintiff, that Mozelle was married to Aga Mohiuddin in 1899, it is almost inconceivable that the late Nawab would have allowed Habib, if he was really his legitimate son, and, therefore, his heir, to remain living with Mozelle after she had married or was living with another man.
45. In August, 1903, Sakina was married to Nawab Ali, the son-in-law of the late Nawab Sobhan. Nawab Ali in his evidence said he knew that Sakina was not legitimate, and that Mozelle was the kept mistress of the late Nawab. There is the evidence of G.G. Roy that he was present at the marriage, but that the late Nawab Sobhan was not there and that he did not attend because the girl was the daughter of his mistress.
46. The same witness said that Mozelle was at first averse to the marriage but eventually she agreed and one reason that weighed with her was a consideration of Habib's position for she thought that if Sakina became Nawab Ali's wife there would, be some provision necessarily made for Habib by Nawab Ali in view of the relationship which would be then established.
47. If this be true, it is strong evidence that Mozelle was not married to the late Nawab.
48. Much reliance was placed by learned Counsel for the appellant upon the marriage of Sakina. It was urged that Nawab Ali would not have married her unless he knew she was the legitimate daughter of the late Nawab.
49. I do not think there is much force in that argument for these reasons:
50. The learned Judge in dealing with the evidence of Nawab Ali said 'It is only fair to the witness, whatever may be one's view of the morality of his intentions of setting up heirs of Sobhan in order to assist 'Altaf, to state that he answered fairly and, I think, 'frankly all the questions put to him.'
51. I gather from this that the learned Judge took the view that in the witness-box Nawab Ali was speaking the truth. Nawab Ali, by his own evidence, is shown to have been prepared to make use of an unscrupulous plan. It appears that although he knew Habib to be illegitimate he was prepared, if necessary, to put him forward as an heir and. to use him as a tool for the purpose of bringing about a settlement which would promote the interests of his own son, Altaf Ali.
52. As regards Sakina, he said that if she had been alive she would have been of great assistance in the matter of keeping her brother Habib in control.
53. Having regard to the unscrupulous nature of Nawab Ali's plans, it is not surprising that he was prepared to marry Sakina even though he knew she was illegitimate, if he thought it would help him in his control over Habib, whom he, frankly admitted, it was in his mind to put forward as the heir, although he knew that he was not the heir, but that he was illegitimate. In March of the same year. 1903, Habib was sent to the Madrassa, his address being given as 13, Radha Bazar Lane, the house where his mother was living and his father's name that of the late Nawab Sobhan. In December, 1903, Mozelle died in the Dufferin Hospital and we were informed that she was buried in a public burial ground. Habib then went to live in the house of the late Nawab Sobhan. The evidence shows that he lived with other boys on the ground floor, students of different schools who were being helped by the Nawab. It appears that he was not given a separate room until he suffered from a disease and it was necessary to segregate him and in short I think on the evidence it is clear that he was not treated in the way that one would expect the legitimate son and sole heir of the late Nawab to be treated.
54. It appears from Nawab Ali's letter to Habib of the 27th July, 1910, that Nawab Ali had suggested that Habib should be sent to Aligarh and on the 3rd December, 1910, the late Nawab Sobhan wrote to the Madrassa expressing his intention of sending Syed Habibar Rahman Chowdhury to Aligrah and asking for a transfer certificate, and apparently Habib went to Aligarh College in December, 1910.
55. About 1911, the late Nawab Sobhan was trying to arrange a marriage between Habib and the daughter of one Salamat Ali and he sent a messenger to Salamat Ali to negotiate the matter.
56. Salamat Ali died shortly afterwards and a man called Hakim Ashgar Ali and another called Joseph interviewed ore Bazlul Rahaman Chowdhry who was the Naib of Salamat Ali and eventually Joseph took Bazlul to see the late Nawab Sobhan.
57. According to Bazlul's evidence the late Nawab and Joseph proposed the marriage to Bazlul: who pointed out that the estate was then in the Court of Wards and it was the Collector and Manager who would have to be approached.
58. The late Nawab and Joseph, however, pressed Bazlul to use his influence and to further the negotiation.
59. Bazlul begged to be excused and according to his evidence he told the Nawab that he had come to know that this boy's mother had not been married, that she was not a married wife and he was not the heir to the property: the late Nawab said that this would not matter and if he would only refrain from mentioning these matters to the Collector there would be no difficulty in putting the marriage through: Bazlul refused and said he would not be able to keep back these things for when eventually these things came out he would be blamed by the public.
60. It appears that in June, 1911, the late Nawab Sobhan called on Miss Cornelia Sorabji, the lady Assistant to the Court of Wards for Bengal, Bihar, Orissa and Assam, with, reference to the marriage of his son to a ward of the Court. Miss Sorabji's answer to the Nawab was to the effect that the ward was too young and that application should be made to the Collector of Chittagong when the proposal would be considered. Great stress was laid by the appellant upon the answer given by Miss Sorabji that the late Nawab's son was one of the suitors who were finally considered; it was alleged that this showed that there was no objection on the ground of illegitimacy; but it appears from a later part of this witness' evidence that she was not one of those who decided the matter. She merely reported any offers which came to her knowledge, and she said that the Commissioner did not discuss the matter with her. So that she was not in a position to say what were the reasons which were the cause of the rejection of the late Nawab's son.
61. It appears that the late Nawab Sobhan had already been in communication with the Collector of Chittagong, for there is a letter, dated the 24th May, 1911, from him to the Collector to which the Collector replied that the Court was not in favour of a very early marriage but that the letter would be submitted to the Court for consideration.
62. The late Nawab was obviously anxious to hurry the matter and said he could not wait 9 or 10 years. On the 25th June, 1911, he wrote to Habib informing him that negotiations for his marriage were going on and telling him that enquiries might be made and thus he must be careful of his conduct and that the estate of the girl was a very big one.
63. On 23rd October, 1911, Habib wrote to Joseph who was then the Personal Assistant of the late Nawab, saying that his disease 'is increased very much, do 'not know what to do.' There is no doubt Habib suffered from a venereal disease: the time during which he was suffering is not clearly defined in the evidence, but I think there can be little doubt that he was suffering from it about this time. In February, 1912, the late Nawab wrote to the Head Master of the Madrassa asking him to take his son again into his school and apparently, in 1912, he was again admitted into that school. In August, 1992, the late Nawab re-opened the correspondence about his son's marriage with the Collector of Chittagong by a letter, dated 14th August, 1912. At this time Mr. Clayton was the Collector and his reply is dated 26th August, 1912.
Chittagong, '26th August 1912.'Dear Sir,With reference to your letter of 11th August, I have the honour to say that the daughter of the late Salamat Ali Khan will not reach the age of 15 years for 2 years more. The Commissioner has suggested that consideration should he given to the following mutters before recommending any bridegroom.
1.'Whether he is of good health.'
2.'What are his educational qualifications.'
3.'Whether he will be willing to reside in Chittagong.'
4.'Whether he belongs to a Syed family of good repute.'
5. 'What amount of dowry will be allowed.'
'I doubt whether your son will be able to satisfy the Court on all points.'
Yours truly,A.H. Clayton, Collector, Chittagong.64. On the 7th October, 1912, the late Nawab replied as follows:
27, Weston Street, Calcutta, '--October 1912.' Sir,I am in receipt of your favour dated the 26th August last informing that there are still about 2 years for the marriage of the late Salamat Ali Khan Saheb's daughter. Owing to several urgent works in my hands and as there is still 2 years for the said marriage, I did not send you a reply on this for which I hoped to he excused.
Respecting family, I can assure you that in Eastern Bengal there is not any Mahomedan families equal to mine except the families of Sastabad Nawabs of Barisal as that Mir families of Sastabad and our families are One; so our families stand first. However it is open to enquiry.
Respecting health, I would way that the boy's health is good.
Respecting dowry, I would in form you that according to the Mahomedan practice it is settled by the guardians of both parties in accordance to their respective position and rank of families.
Respecting dwelling at Chittagong, I may inform yon that at present there will be obstruction to the boy's education if he remains there, but after his school life I promise you that he will at least remain 6 mouths there in a year. After that when they obtain their majority I cannot bind myself whether they shall prefer to remain there always or shall prefer to live a few months at their Calcutta residence.
Respecting education, I may add that the boys (specially of Mahomedans) who have sufficient means for their food and clothing, etc., they do not care much for education which no doubt you are well aware of but they take interest in riding, hunting, shooting, billiards, etc. However my boy is now in second class and can write and speak English with Europeans even.
Although the boy could have passed Entrance Examination by this time yet he could not do so as be had to go through the Mahomedan religious instructions and the study of Koran which took away his several years, however, I expect that he will pass it during the next 18 or 20 months.' Yours obediently,Syed Abdus Sobhan,''ToA. Clayton, Esq.,Collector.
65. The late Nawab's son was not accepted as a suitor for the girl's hand and she married another Mahomedan in 1916, the betrothal having been in 1914. Neither Mr. Clayton nor Mr. Geake, the Commissioner, were called as witnesses, but U.C. Dutt gave evidence: he was a Manager of the Court of Wards and took charge of the estate of the late Salamat Ali in 1910.
66. He said in his evidence that the Commissioner consulted him before Habib was rejected and Mr. Dutt in his turn consulted Bazlul Rahaman, a Mahomedan officer of the estate, to whose evidence 1 have already referred. His evidence on this point is at page 613 of the Paper-book. In effect it amounts to this that Bazlul stated to Mr. Dutt what he said in his evidence about his conversation with the late Nawab.
67. Mr. Dutt told the Commissioner what he had heard from Bazlul, viz., that Habib was not the legitimate son of the late Nawab and, acting according to the instruction of the Commissioner, Mr. Dutt struck the name of Habib out of the list of persons with whom the marriage negotiations were going on, and he stayed further negotiations with reference to this boy.
68. Much reliance was placed by learned Counsel for the appellant upon this correspondence between the late Nawab and the Collector as showing that the late Nawab acknowledged Habib as his legitimate son and with the intention of conferring upon him the status of legitimacy.
69. There is no doubt that the late Nawab in this correspondence by putting forward his son Habib as a suitor for Salamat Ali's daughter, must have intended that the Collector should believe that Habib was his legitimate son. it was not necessary to state in so many words that Habib was legitimate, for the late Nawab would know that the Collector would assume that Habib was legitimate from the fact that the late Nawab was putting him forward as a suitable husband for the ward of Court.
70. On the other hand, Sir B.C. Mitter, for the respondent, asked us to hold that it was not an honest letter and relied upon the following among other grounds. He urged that the allegations in the letter as to respectability were false, inasmuch as the late Nawab had not married Mozelle and the boy was in fact illegitimate and that up to 1911 he had not acknowledged Habib as his legitimate son, that He had parted with practically all his property in 1902 and that he obviously never intended to leave any property to Habib. It was further alleged that Habib was then suffering from a venereal disease and that the late Nawab must have known of it. As to the last allegation, I think it is possible (though not likely) that the late Nawab may not have known of the venereal disease and I think that this point should not, therefore, be allowed to weigh against the plaintiff's case. It was further urged that the allegation that the boy was a sportsman though not much of a scholar, was not true, and that as regards dowry, the statement in the letter is vague and that in fact the Nawab made no provision for the boy and never intended to do so.
71. The same stress was laid by the appellant's learned Counsel upon the correspondence relating to Habib's entry into the Madrassa and Aligarh, On the other hand, the respondents urged that when sending Habib to these places the late Nawab Sobhan was bound to give the name of Habib's father and, consequently, to describe Habib as his son, which undoubtedly he was; but that such description was obviously not intended, having regard to all the other facts in the case, to be an acknowledgment with the intention to confer upon him the status of legitimacy. I agree with the conclusion of the learned Judge, viz., that the late Nawab acknowledged Habib as his son for the purpose of his entry into the Madrassa and Aligarh and for the purpose of inducing a marriage between Habib and the daughter of Salamat Ali; but I am not satisfied having regard to the other facts in the case, as disclosed by the evidence, that these acknowledgments were made with the intention of conferring upon Habib the status of legitimacy.
72. On the 2nd July, 1915, the Nawab Sobhan died. The appellant relied on the negotiations which took place about that time and the facts relating thereto as showing that Altaf Ali tried to bind Habib by agreement in writing so as not to claim the estate: on the other hand it was urged that Habib never asserted that he was a legitimate son and that the evidence of M.M. Chatterjee as to what passed on the 30th June and 1st July, had been accepted by the learned Judge as correct.
73. To go back for a moment in the history of this case, it appears that on the 8th March, 1890, Tahurunnessa Bibi Chowdhurani, the wife of the late Nawab Sobhan, executed a wakfnama: she died the same day: the late Nawab Sobhan was by the deed appointed mutwali. The deed contained a Clause (No. 10) whereby it was provided that 'should any mutwali renounce 'his religion, change his faith or become apostate or 'marry in a different nationality, he shall never be 'competent to be appointed in the office of mutwali 'or to remain as such.'
74. Very great reliance was placed upon this by the learned Counsel for the appellant; he argued that this provided a reason for the late Nawab Sobhan keeping his marriage with Mozelle, which he urged had taken place as referred to above, secret: for he urged that the late Nawab would be anxious not to lose the mutwaliship, which would be a source of considerable profit to him and that it was not until after the settlement (arrived at by means of the 4 deeds in 1902) that the late Nawab's fears of discovery would be removed and that after that it appears from the evidence that the late Nawab began to acknowledge his son Habib openly as his legitimate son.
75. On the other hand, Sir B.C. Mitter urged that this was an after-thought, for it was in the. first instance alleged that the acknowledgment by treatment extended over 20 years from the birth of Habib that the prohibition against marrying in a different nationality was as valid after the settlement in 1902 as before and, further, that the existence of Clause 10 in the wakfnama would be the strongest reason for the late Nawab not marrying Mozelle, and would operate as an inducement to him to continue the irregular relations which existed between the late Nawab Sobhan and Mozelle by means of which he was able to obtain full satisfaction of his desires.
76. Further, reliance was placed upon the recital in the Indenture of 19th February, 1902, to which the late Nawab was a party, whereby it was recited that the late Nawab Sobhan had had born to him an only child being a daughter named Altafunnessa and that Altaf Ali was the only male descendant of the late Nawab Sobhan.
77. In my judgment these arguments produced on behalf of the respondents were forcible, and so far as the clause in the wakfnama is concerned, I think it supports the contention of the respondents rather than that of the appellant.
78. The letters of the late Nawab to Mozelle have been referred to at much length; the main point that strikes me about them is that they extend from May, 1893, down to May, 1903, and that even after the late Nawab had severed his intimate connection with Mozelle in 1899, when she is alleged by Habib to have married Aga Mohiuddin, the letters from the late Nawab to Mozelle are written in much the same strain as before. Mozelle is addressed in the same way as before and money is sent by the late Nawab in the same manner and to the same amount as before for the expenses of Mozelle and the children who were allowed to remain with Mozelle, although she is said to have been living with another man. This to my mind is strong evidence to show that the late Nawab recognised that he was under a responsibility to Mozelle for the expenses of the children which were undoubtedly his own; but it is inconsistent with the case that he regarded them as his legitimate children.
79. As regards the verbal evidence of acknowledgment given on behalf of 'the plaintiffs, the learned Judge has not accepted it As regards the witnesses upon whom the appellant placed chief reliance: 1st--Abdul Majid is obviously unreliable, his evidence is vague, and he said that he saw Mozelle on two occasions only: one would be 28 or 30 years ago, and the 2nd, 26 or 27 years ago. He also said she was a pardanashin lady which is quite inconsistent with the evidence in the case, which shows that Mozelle used to attend parties where dancing girls and women of doubtful character were present.
80. 2nd--Prince Delwar said that the late Nawab told him Mozelle was his Jewish wife, that the boy was his son by his Jewish wife and that the Jewess used to visit his zenana, this was 19 or 20 years ago, and the Jewess came on two or four occasions. When cross-examined, he said that the late Nawab called Mozelle 'Bibi,' and he admitted that this word did not necessarily imply marriage. It may be noted that in the case of Mahatala Bibee v. Prince Ahmed Haleecmoo-zooman (1881) 10 C.L.R. 293; 322., Garth, C.J. drew attention to the fact that the word 'Bibi' might have been used with reference to a favourite concubine, as well as to a nika wife.
81. 3rd--Golam Hossain A riff's evidence was, in my judgment, unreliable. He made several serious misstatements, e.g., that he saw Habib in Weston Street before 1897, and then altered it to 1907. He altered it again to 1898 or 1899. It is common ground that Habib did not go to live there until 1903. He said he saw Joseph at Weston Street from 1889 to 1910, whereas in fact Joseph did not go there until 1910. He was asked to give evidence as late as the Sunday before he gave his evidence.
82. 4th--As to Joseph it was alleged that he was a partisan of Habib's, and I think there is some ground for this: his evidence is not convincing.
83. On the other hand, there was the evidence of a large body of witnesses, which goes to show that Mozelle was the late Nawab's kept mistress and that he did not acknowledge Habib as his legitimate son. Some of the evidence as to the latter point is of a negative nature, but the evidence was given by people such as the Collectors, District Magistrates, pleaders and others who were intimate with the late Nawab and whose evidence covered a period from 1899--1912, and who must, I think, have known if the late Nawab had a legitimate son, and they say they never heard of the Nawab having a legitimate son.
84. There is the further evidence disclosed by the directories in which no trace of Habib as a legitimate son can be found. Learned counsel for the appellant urged no less than 27 reasons upon which he relied in support of his case. It is not necessary to refer to all. They were fully considered during the hearing of the appeal, which lasted 11 days. The main points were:--(1) the long and continued cohabitation between the parties and the fact that children were born.
85. This is no doubt a very important point, but the inference to be drawn from it is, to my mind, much weakened when it is remembered that the relations between the late Nawab and Mozelle were in the first instance irregular, and Mozelle was undoubtedly the kept mistress of the late Nawab. Further, I think it is proved that Mozelle never went to live in the late Nawab's house, and even when she wont to Bogra, she was put in a house in the bazar which was allocated to her.
86. The termination of their relations is also material. I have already referred to the fact that after 1899, as alleged by the plaintiff Habib, Mozelle was married to Mohiuddin and yet the children of the late Nawab were allowed to remain with her; as far as I can ascertain there is no trace of any divorce by the late Nawab Sobhan in or about the year 1899. There is also the fact that Clause 10 of the wakfnama afforded a strong reason why the late Nawab should not marry Mozelle. These facts, in my judgment, together with the other facts which I have previously mentioned, rebut the presumption which might arise from the long cohabitation and birth of children.
(2) The late Nawab's love for Mozelle, Sakina and Habib: I do not think there is anything in this that is inconsistent with the defendants' case.
(3) The late Nawab's instructions to Mozelle not to perform circumcision of Habib, according to Jewish form, as shown by the letter set out at page 535 of the Paper Book. This, to my mind, is strongly against the appellant's case, for it seems to me that if Mozelle had become a Mahomedan, as alleged by the plaintiff Habib, there would be no necessity for the late Nawab to give the abovementioned instructions. The letter seems to me to point to the fact that Mozelle was still a Jewess.
(4) Sakina's marriage. This I have already referred to.
(5) Habib being brought up in the late Nawab's house. After Mozelle's death, I think there is nothing inconsistent with the defendants' case, in the late Nawab taking the boy into his own house. The evidence, as already mentioned, shows that he was not treated in the house, as if he was the sole heir of the late Nawab.
(6) The admission as to Habib being his son made by the late Nawab when negotiating his marriage and sending him to school and college. These I have already dealt with and I shall have to refer to them later on in another part of the case.
(7) Nawab Ali's letters, dated 5th November, 1914, and 31st July, 1915, to Altaf Ali, wherein it is alleged that Nawab Ali was referring to Habib as the legitimate son of the late Nawab. Reading them as a whole I think these letters are not inconsistent with Nawab Ali's evidence, viz., that his plan was, if it become necessary, to set up Habib as heir and to use Jim as a tool. There would then be a chance of Habib and the nephews of the late Nawab falling out, and under such circumstances the interests of his own son Altaf Ali might be benefited in any settlement which might be arrived at.
87. Upon this first issue, as I have already mentioned, the learned Judge arrived at the conclusion that Mozelle Cohen was not married to the late Nawab, and the question is, has the appellant satisfied us that the learned Judge was wrong in his conclusion on this question of fact.
88. In my judgment the appellant has not discharged that onus; on the contrary after considering the evidence in the case and all the arguments adduced by Mr. Hyam on behalf of the appellant and giving all due weight to the presumptions which he alleged ought to be drawn in favour of legitimacy, I think the learned Judge was right in holding that Mozelle was never married to the late Nawab Sobhan: to put it in other words, in my judgment, it has been proved that Mozelle was never married to the late Nawab. Mr. Hyam then argued that though the defendants had proved there was no marriage, that was not enough, and that the defendants must disprove the semblance of marriage. I am not sure that this point was raised in the Court of first instance, but if it is necessary to decide it, the facts of this case, in my judgment, make the position clear and prove that alt the time the late Nawab had relations with Mozelle, she was no more than his kept mistress, and that Habib was in fact the illegitimate son of the late Nawab.
89. A further question then arises: it was argued for the appellant that even if it be proved that Habib was illegitimate, the late Nawab acknowledged him as his son with the intention of conferring the status of legitimacy upon him, and that as acknowledgment is a substantive part of the Mahomedan law, the Court must hold that Habib was legitimate.
90. As regards the fact of acknowledgment as already stated, I think that the late Nawab acknowledged Habib as his son for the purpose of getting him into the Madrassa and Aligarh, and he acknowledged him to Miss Sorabji and the Collector, as his son for the purpose of bringing about a marriage between his son and the daughter of Salamat Ali; but having regard to all the facts of this case, I am not satisfied that the late Nawab intended thereby to acknowledge Habib as his son, so as to confer upon him the status of legitimacy for all purposes and in all respects.
91. Assuming, however, for this part of the case, though not deciding that the acknowledgments by the late Nawab to the school and college authorities, to Miss Sorabji and to the Collector, are to be taken as acknowledgments in the legal sense according to Mahomeden law, and. that the late Nawab did intend thereby to confer the status of legitimacy upon Habib, the question still remains whether that is sufficient under the circumstances of this case to enable the appellant to succeed in this appeal.
92. There is no doubt that by the Mahomedan law the intercourse of a man with a woman who is neither his wife, nor his slave, is unlawful and prohibited absolutely; and that a child born out of wedlock is illegitimate. But reliance was placed upon the decision of the Judicial Committee of the Privy Council in Ashrufood Dowlak Ahmad Hossein Khan Bahadoor v. Hyder Hossein Khan (1866) 11 Moo. I.A. 94, and the passage in the judgment to which our attention was chiefly directed is at page 113.
The presumption of legitimacy from marriage 'follows the bed, and whilst the marriage lasts, the 'child of the woman is taken to be the husband's child; 'but this presumption follows the bed, and is not antedated by relation. An ante-nuptial child is illegitimate. A child born out of wedlock is illegitimate; 'if acknowledged, he acquires the status of legitimacy. 'When, therefore, a child really illegitimate by birth 'becomes legitimated, it is by force of an acknowledgment express or implied, directly proved or 'presumed. These presumptions are inferences of fact. 'They are built on the foundations of the law, and do 'not widen the grounds of legitimacy by confounding 'concubinage and marriage. The child of marriage is 'legitimate as soon as born. The child of a concubine 'may become legitimate by treatment as legitimate. 'Such treatment would furnish evidence of acknowledgment. A Court would not be justified, though 'dealing with this subject of legitimacy, in making any 'presumptions of fact which a rational view of the 'principles of evidence would exclude. The presumption in favour of marriage and legitimacy must rest on 'sufficient grounds, and cannot be permitted to override 'overbalancing proofs, whether direct or presumptive. 'The case of Mahommed Bauker Hoossain Khan v. 'Shurfoon Nissa Begum (1860) 8 Moo. I.A. 136 affirms this principle.'
93. It was admitted in that case that a moottah marriage between the respondent's father and respondent's mother had been contracted, but the plaintiff alleged in effect that the conception and birth of the respondent had preceded the marriage. The Judicial Committee held that there was a total failure of proof whether marriage preceded or followed pregnancy, and the main question in the case was whether the defect in the evidence could be supplied by a presumption placing that marriage itself at a time anterior to pregnancy. It was a case of uncertainty whether the marriage preceded or followed pregnancy. The passage quoted dealt with this question of presumption and, in my judgment, must be read having regard to the facts of the case.
94. It was pointed out in the course of the judgment that the acknowledgment in its legal sense under the Mahomedan Law means acknowledgment of antecedent right established by the acknowledgment of the acknowledger, that is in the sense of a recognition not simply of sonship, but of legitimacy as a son. The question whether a child who is proved to be illegitimate by reason of the marriage of his parents being disproved, could be legitimated by an acknowledgment was not before the Judicial Committee and I do not think it was intended to decide this question in that case.
95. That this is so, is shown in my opinion by subsequent decisions to which I shall refer presently and which have been given not only in this Court, but also in the Allahabad High Court, and finally by the Judicial Committee of the Privy Council.
96. In Mahammad Azmat Ali Khan v. Lalli Begum (1881) I.L.R. 8 Calc. 422, the abovementioned passage was referred to, and with reference thereto their Lordships said at page 433 'these observations must be taken with reference 'to the facts of that case,' and the rule of law was laid down as follows at page 432, 'the acknowledgment 'and recognition of children by a Mahomedan as his 'sons gives them the status of son, capable of inheriting as legitimate sons unless certain conditions exist 'which do not occur in this case.'
97. In that case though there was positive evidence of a marriage having taken place, their Lordships did not find it necessary to pronounce a distinct opinion upon the question whether the marriage in fact took place and they thought that the plaintiffs were entitled to succeed on the ground of the acknowledgment the evidence of which was strong.
98. This again was a case where the question of marriage was uncertain and the point now to be decided was not before the Privy Council.
99. In Muhammad Allahdad Khan v. Muhammad Ismail Khan (1888) I.L.R. 10 All. 289., this question was discussed fully, and though some of the conclusions of Mahmood J. were obiler (as we were reminded by learned Counsel for the appellant) they are well worthy of consideration, and the decision of the Judicial Committee in 11 Moore's, I.A.94 was discussed.
100. Straight J. in his judgment at p. 306 dealing with that case said as follows:--'The original case from 'which the appeal was preferred is to be found reported 'in the Panjab Record for 1875 at p. 21 of the Civil 'Rulings, and from this it appears that Mr. Boulnois, 'a Judge of the Chief Court, hold in effect that 'the 'acknowledgment of a son renders that person the 'legitimate son of the acknowledger under Mahome-'dan law, although the person acknowledged was 'born out of wedlock.'
This view may possibly seem to be in accordance 'with the often-quoted passage to be found in their 'Lordships'judgment in the case of Ashrufood Dowlah 'Ahmed Hossein Khan Bahadoor v. Hyder Hossein 'Khan (1866) 11 Moo. I.A. 94 commencing, 'But the presumption of 'legitimacy from marriage follows the bed, etc.' 'Nevertheless, with the greatest deference, it seems to 'me that Mr. Boulnois' proposition goes too far and 'that it is not in harmony with the texts.
This was concurred in by Sir John Edge C.J., and Mahmood J. at page 333, said as follows:--'After 'having carefully considered the various rulings of 'the Lords of the Privy Council in the cases to which 'I have referred, I am of opinion that their Lordships 'never intended to go the length of laying down the 'rule that a child who is proved to be illegitimate, 'either in consequence of marriage between his parents 'being disproved, or being unlawful, could be legitimated by an acknowledgment. All the cases which 'their Lordships had before them were cases in 'which the question of marriage itself was a matter in 'dispute and involved in obscurity with reference to 'the legitimacy of the child. In other words, those 'cases were such as left either the fact or the exact 'time of the alleged, marriage a matter of uncertainty, 'that is, neither proved nor disproved; and their Lordships in dealing with those cases applied the principles of the Mahomedan law of acknowledgment 'of parentage with reference to legitimacy for purposes 'of inheritance. Any other view of those cases would 'involve the proposition that their Lordships intended 'to go far beyond the authority of the Mahomedan 'law itself as to acknowledgment of parentage and 'legitimacy for purposes of inheritance.
101. In Dhan Bibi v. Lalon Bibi (1900) I.L.R. 27 Calc. 801, it was held that under the Mahomedan law where a child is begotten by a Mahomedan father by a Hindu prostitute living with him, no acknowledgment by the father can confer on the child the status of legitimacy. This decision is not exactly in point in this case, but it is useful because the learned Judges quoted and approved the passage in Mr. Justice Ameer Ali's Personal Law of Mahomedans at page 218, which runs as follows:
A child whose illegitimacy is found beyond doubt 'by reason of the marriage of its parents being disproved or found to be unlawful cannot be legitimatised 'by an acknowledgment. Acknowledgment has only 'the effect of legitimation where either the fact of 'marriage or its exact time, with reference to the legitimacy of the child's birth is a matter of uncertainty.
102. In Musst. Bibee Fazilatunnessa v. Musst. Bibee Kamarunnessa (1904) 9 C.W.N. 352., the point now under discussion was not decided, but the case is valuable for the summary given in the Court's judgment of the cases there cited, including the Privy Council decision in 11 Moo. I.A. 94. It is as follows:--'It is enough for the purpose of 'the present case to say that all the authorities are 'agreed in holding that unless there is an absolute bar 'or impediment to a valid marriage, acknowledgment 'has the effect of legitimation where either the fact of 'marriage or its exact time with reference to the legitimacy of the child's birth is a matter of uncertainty': and finally in Mirza Sadik Husain Khan v. Nawab Saiyed Hashim Ali Khan (1916) I.L.R. 38 All. 627 ; 21 C.W.N. 130, which is a decision of the Judicial Committee of the Privy Council, Lord Atkinson in delivering the judgment said at page 658: 'In their Lordships' view the reason 'able inference from all the evidence on this point 'is that Sultan Mirza was, at all events, the son 'of Zaigham-ud-Daula and this Negress. The crucial question then is, was he the Nawab's legitimate 'son? There is no question that the Sultan Mirza 'was the son of this woman. That is admitted by 'all parties.' Lord Atkinson then dealt with the evidence of the witnesses who proved that the Nawab acknowledged him to be his son, and concluded:--'Their Lordships do not think that the evidence of 'the four witnesses abovementioned is rebutted or discredited by these documents,' The following passage then occurs in the judgment:--'If this be so, the rule 'of the Mahomedan law applicable to the case is wellestablished. No statement made by one man that 'another (proved to be illegitimate) is his son can make 'that other legitimate, but where no proof of that kind 'has been given such a statement or acknowledgment is 'substantive evidence that the person so acknowledged 'is the legitimate son of the person who makes the 'statement, provided his legitimacy be possible.' And it is to be noticed that Lord Atkinson cited for this proposition Muhammad Allahdad Khan v. Muhammad Ismail Khan (1888) I.L.R. 10 All. 289, and Mahammad Asmat Ali Khan v. Lalli Begum (1881) I.L.R. 8 Calc. 422, the cases to which I have already referred,
103. in the case before us the learned Judge who tried the case has found as a fact that Mozelle Cohen was not married to the late Nawab, and that Habib was not the legitimate son of the late Nawab. As already mentioned I agree with such findings and, in my judgment, the alleged marriage between the late Nawab and Mozelle has been disproved, and it has been proved that Habib was illegitimate, and consequently having regard to those findings and in view of the abovementioned decisions, the alleged acknowledgments made by the late Nawab (assuming though not deciding that they were acknowledgments within the meaning of the Mahomedan law) to the authorities of the Madrassa and Aligarh and by reason of his interview with Miss Sorabji, and by the correspondence with the Collector as to Habib's marriage, could not and did not make Habib legitimate.
104. For these reasons, the appeal should, in my judgment, be dismissed with costs.
105. I will not recapitulate facts set out in the judgment of the Chief Justice. It is necessary to distinguish between an acknowledgment in its technical sense and mere statements which are alleged to be acknowledgments, but which though having the apparent form of it, are not in law acknowledgments because they are not made under those circumstances, under which alone an acknowledgment is valid; as where it is shown that the person so described was the son of another. Where an acknowledgment is alleged, it may he shown that there was no acknowledgment either in fact or law, that is that there was never an acknowledgment at all. But an acknowledgment once made and proved cannot be rebutted. It cannot even be repudiated by the man who made it. So in a work cited to us by counsel for the appellants it is said:--'If he says, 'This child is not of me' and then afterwards says, 'He is of me,' it is valid. But if he says, ('It is) of me,' and then afterwards says, ('It is) not of me,' the denial is not valid. (From the Chapter on claim of the Futwa Khulasah.' Futwa Ali Effendi, Vol. I., page 131, Constantinople Edition.) It is necessary to bear in mind the distinction between showing that a legal acknowledgment has not been established and language which speaks of an acknowledgment being rebutted. Though a man purports to make an acknowledgment, it is not such if it be physically impossible by reason of the respective ages of the parties, if descent has already been established from another, and if the person acknowledged being of age disclaims the relationship. It is to be observed that in this case none of these particular objections are present. The ages of the deceased Nawab and the Jewess Mozelle were such that the plaintiff might have been born of them. It is not alleged that the plaintiff was the son of another. On the other hand it is admitted that the plaintiff was born of the bodies of the deceased Nawab and Mozelle. There is no disclaimer, for the object of the suit is to affirm the sonship of the plaintiff to the deceased Nawab.
106. These are the circumstances under which (to use the language of Baillie's Digest, page 405) 'the acknowledgment by a man of a child is valid.' In Sir Roland Wilson's Anglo-Mahomedan Law it is said that it 'seems' that there is a fourth circumstance under which an alleged acknowledgment is not in law such, and which is stated as follows:--'Proof that the mother of the acknowledgee could not possibly have been the lawful wife of the acknowledger at any time when the acknowledgee could have been begotten.' It is contended for the appellant that the case-law is not in all respects in conformity with the Mahomedan law books. However this may be, we must consider and may be bound by previous legal decisions. There is judicial authority for the proposition that there is no valid acknowledgment, where it has been proved that there was a legal bar to the marriage of the acknowledger and the woman whose son the claimant to legitimacy is said to be. Thus it has been held that there could be no acknowledgment where it has been proved that the father and mother could not have validly married one another, the alleged wife being a Hindu, though in this case it was also found that there was no marriage [Dhan Bibi v. Lalon Bibi (1900) I.L.R. 27 Calc. 801]; where there was an incestuous and therefore void union [Aizunnissa Khatoon v. Karimunnissa Khatoon (1895) I.L.R. 23 Calc. 130]; and where the claimant was shown to be the child of adultery and where, therefore, the acknowledger could not have been married to the mother at the time when the claimant was begotten [Liaqat Ali v. Karimunnissa (1893) I.L.R. 15 All. 396]; though it is to be observed us to the last point that the Privy Council in Sadakat Hossein v. Mahomed yusuf (1883) I.L.R. 10 Calc. 663 left open the question whether the offspring of an adulterous intercourse can be legitimated by any acknowledgment. Possibly this may have been meant to exclude cases of deception. The point before us for decision (apart from the question whether the alleged acknowledgment was made with the intention of conferring legitimacy) is this:--Where there is an acknowledgment in other respects valid, is it invalid if the facts proved are held to show that there was no marriage or semblance of marriage at the date the child was born so that the latter was issue of fornication (zina).
107. The intercourse of a man with a woman who is neither his wife nor his slave is unlawful and prohibited absolutely. When there is neither the reality [not 'validity' as reported in Muhammad Allahdad Khan v. Muhammad Ismail Khan (1888) I.L.R. 10 All. 289, 329] nor the semblance of either of these relations between the parties, their intercourse is termed zina and subjects both parties to punishment (Baillie's Digest, p. 1). The offspring of such unlawful union is Wulud-ooz-zina and illegitimate and cannot inherit, for legitimacy is a condition precedent of inheritance. It is to be thus noted that there must be neither reality nor semblance and that, therefore, there may be fornication according to English notions which would not be zina under Mahomedan law. I did not myself understand Mr. Hyam to argue that concubinage was a semblance or equivalent of marriage; but that zina only exists where neither marriage nor the semblance of marriage is shown. If mere concubinage is established there is (ex hypothesi) neither marriage nor semblance of marriage which a proved concubinage excludes.
108. If then it be proved that a claimant is illegitimate in the sense that it is proved that the father and mother could not have been legally married, or that the claimant is issue of zina according to Mahomedan law, in such circumstances according to the case-law, a statement which would otherwise be an acknowledgment has not that effect. It is not as if in such case that a legal presumption arising from acknowledgment is in conflict with inferences arising from the other facts of the case. The acknowledgment in its technical sense under Mahomedan law is ineffectual because not made under conditions under which alone it is valid. It would in such case be at most an admission in the ordinary sense of the Evidence Act to be considered with the other facts of the case. If however zina is not shown, but marriage is left in doubt then acknowledgment with such intention confers status of legitimacy. The question then in this case is whether the evidence proves a state of facts under which there can be no valid acknowledgment. In other words, has it been proved that the plaintiff is issue of zina. As regards proof the case for the respondent is this: if a marriage is established otherwise than by an acknowledgment, it is not necessary to rely on the latter; if marriage is disproved, the alleged acknowledgments are of no effect; and it is only if it be uncertain whether there was a marriage or not, or legitimacy or not, then the acknowledgments are effectual to establish legitimacy. If the statement relied on as an acknowledgment is otherwise valid, then the question is not whether the plaintiff has proved a marriage, but whether the defendants have beyond all reasonable doubt disproved it; in the words of Article 85 of Sir Roland Wilson's Anglo-Mahomedan Law 'Proof that the mother of the acknowledgee could not possibly have been the lawful wife of the acknowledger at any time when the acknowledgee could have been begotten.' It is in such case for the defendants to disprove the legitimacy which the plaintiff asserts and in support of which he has given evidence. The defendants must not leave the matter in any reasonable doubt, but must positively establish that the plaintiff was not in fact a legitimate son but the issue of zina. The decision in Ashrufood Dowlah Ahmed Hossein Khan Bahadoor v. Hyder Hossein Khan (1866) 11 Moo. I.A. 94, 113, 114 is not necessarily in conflict with more recent decisions of the Privy Council which say that where illegitimacy is proved there can be no acknowledgment in opposition to the known fact. For the first decision may refer to cases where, though there has been no legitimate relation, there has been the semblance of it.
109. Marriage in Mahomedan Law has been said to be a contract for the legalising of generation, which may be valid without writing or religious ceremony, but which, like any other contract, requires words of proposal and acceptance in the presence of witnesses, though lack of them makes the marriage irregular only. There is no direct evidence here which establishes the making of a marriage contract. But this does not conclude the matter, for it is open to the plaintiff to establish a marriage inferentially from the circumstances. Further; in the present case there is an alleged acknowledgment and this if established to be such, would dispense with further evidence. So in a quotation cited to us from the Ashbah Wul Nazair page 179, Calcutta Edition, it is said: 'It is stated in the chapter on claims of the Yatimah that Ali, son of Ahmad, was questioned as to a man who dies leaving property which is divided by his heirs and then a man comes and claims that the deceased was his father and establishes his descent before the Kazi by witnesses and that his father acknowledged that he was his son and the Kazi decides in his favour the establishment of descent and the heirs say to him: Adduce proof that the deceased married thy mother. Will it be a defence? He (Ali C. Ahmad) answered:--If the Kazi decrees the establishment of his descent, his descent and his sonship are established and there is no need of anything more' (Ashbah Wul Nazair page 179, Calcutta edition). The position then is this:--If the marriage is proved, there is no need to have recourse to the acknowledgment: if a marriage or semblance of marriage is disproved so as to establish that the plaintiff is issue of zina, then the alleged acknowledgment is not valid. If on the evidence the marriage and legitimacy are left in doubt, then a valid acknowledgment is conclusive. If again there is no valid acknowledgment in the sense of an intention to confer legitimacy, then in my opinion the plaintiff, on whom the onus in this respect lies, has not sufficiently proved the marriage alleged. On the other hand, if the alleged acknowledgment is otherwise valid, I cannot say that the defendants have disproved marriage or semblance of marriage.
110. It is, therefore, of primary importance in this case to ascertain whether any acknowledgment has been proved which, was made with the intention of conferring on the plaintiff the status of legitimacy with all its privileges by way of inheritance or otherwise. If such a statement is proved, then the question arises whether the alleged marriage has been disproved in which case an acknowledgment cannot operate to recognise that which is known not to be the fact. If such a statement is not proved then the question arises whether the plaintiff on all the facts of the case has established a marriage.
111. I need not recapitulate facts set out in the judgment of Greaves, J. and of my learned brothers. Whatever may be said as to particular items of proof (a matter upon which I reserve my opinion) there is no doubt that if the plaintiff does not establish an acknowledgment then an argument may be raised against his having otherwise proved a marriage. In my opinion if there be no acknowledgment, the plaintiff has failed to other wise prove the marriage alleged and his legitimacy.
112. The next question then is whether a statement of the deceased Nawab has been proved which was made with the intention of conferring legitimacy on the plaintiff. If it has been proved, then there might in my opinion be a difficulty in holding that both the reality and semblance of a legal relationship had been disproved. For not merely marriage must be disproved but both the reality and semblance of legal relationship such as (to cite an example given by counsel for plaintiff) an agreement for cohabitation and the generation of children without appropriate words and under the conditions required by Mahomedan law. And the onus is on the defendants to exclude the existence of any conditions under which a statement made with the intention of conferring legitimacy is valid. Can it be said that there is neither the reality nor semblance of a legal relationship, where (amongst other things) it has been proved that the plaintiff's father and mother lived together for several years, had children, daughter and son, born to them: where the daughter was married into a good family, that of Hon'ble Nawab Ali Chowdhury who had previously married Altafunnessa, the admittedly legitimate daughter of the deceased Nawab, and where an attempt was made to marry the son into another Mahomedan family of wealth, such son's legitimacy having (according to the hypothesis) been acknowledged. There is some dispute as to whether at a later period the term mahalana should be translated as 'salary.' Some facts which as evidence of treatment appear to go against the conclusion that plaintiff's mother was a legitimate wife may perhaps be explained by reason of her being a Jewess of a low social condition. If on the other hand, it is not made out that the statements asserted to be acknowledgment were uttered with a view to confer the status of legitimacy, it is not necessary to consider whether the evidence is sufficient to negate both the reality and semblance of legal relationship. It is for the plaintiff to prove such a relationship.
113. I will proceed then to consider the nature of the statements relied upon.
114. There are three witnesses who speak to this matter. Thus Abdul Majid, father's cousin of the deceased Nawab, deposes that the Nawab told him that the plaintiff's mother was the Nawab's wife, but his evidence goes too far to be reliable for he speaks of the Jewess Mozelle as being a pardanashin lady in 1887, and his evidence is inconsistent with the argument that the Nawab's marriage was kept secret until 1902. The evidence of Prince Del war Jan did not prove more on this point than that the Jewess Mozelle was the Nawab's Bibi and that the plaintiff was their son which is admitted. But Bibi does not, as the witness admits, necessarily connote marriage. The Hon'ble Golam Ariff also says that the Nawab admitted that the plaintiff was 'the issue of his wife who was originally a Jewess.' This open assertion of marriage and sonship is said to have been in 1897, although, as I have said, the case is that the Nawab's relations with Mozelle were kept quiet until after 1902. He says: 'Well I cannot say whether he was legitimate or illegitimate, but I can say that he was his son. This much every one said that he was his son.' It may be that it was known to some that the plaintiff was a son. The question is, was he legitimate? The witness says 'it was common knowledge amongst the friends of the Nawab.' It is replied that it is alleged that there was no public acknowledgment before 1902. This witness' evidence is in conflict with the rest on the subject of residence in Weston Street and the employment of Joseph. Greaves J. has not accepted these witnesses as proving acknowledgment nor am I prepared to do so. There is, however, no denial as to the faclum of statements made to the Madrassa, to Miss Sorabji, an officer of the Court of Wards, and to the Collector of Chittagong. The first was made in the college books on entry of the plaintiff into the college and afterwards, and proves nothing more than this, that the plaintiff was the Nawab's son as in fact he was. In order to get the boy into the college it was necessary to state his parent or guardian. The secoed and third form a stronger case, because the Nawab spoke of the plaintiff as his son in such quarters. This he did in connection with the marriage which he sought to bring about between his son the plaintiff and the daughter of his friend Salamat Ali who had married a Jewess and had a daughter by her who was wealthy and was a ward of the Court of Wards. To Miss Sorabji and the Collector the Nawab spoke of his 'son' or 'boy' whom he wished to marry to the daughter of his old friend Salamat Ali. Now, the direct purpose of these, statements was not to declare the legitimacy of the plaintiff but to get the plaintiff married, the plaintiff being incidentally described as his son which he in fact was. It must however be conceded that if there was any question as to the illegitimacy of his son that the Nawab would not have wished either Miss Sorabji or the Collector to know it; and that his letters and statements would naturally have the effect upon the minds of the persons to whom they were addressed, of making them think that the plaintiff was the son (which without more they would assume to he the legitimate son of the deceased. If his son was illegitimate the Nawab must have known that the language he used would not inform either Miss Sorabji or the Collector of it. In other respects the Nawab's letters to the Collector were not candid, or apparently truthful Facts were kept back. Thus the Nawab states in his-letter to the Collector of the 7th October, 1912, that the boy's health is good whereas the evidence seems to show that in 1912 (at a date anterior to the letter cited) and 1914 the plaintiff was suffering from a disease. It is true that the plaintiff says he kept the fact from his father. But the evidence and the inferences there from do not support the alleged ignorance of the deceased. Nawab. The letter also suggests that the plaintiff was brought up as a rich man's son riding, hunting, sporting, playing billiards, which the evidence does not establish though the school bill shows fees for riding lessons. This is brought out by comparison of the treatment of the legitimate grandson Altaf Ali. It is not possible of course to say with learned Counsel for the respondents that this was a disingenuous attempt to pass off on the Collector or the Court of Wards an illegitimate boy, without coming to a conclusion upon the issue whether there was the reality or semblance of marriage. Bazlul Rahaman the witness, who was asked by the Nawab to negotiate the marriage, said, in answer to the question, whether the Nawab was perpetrating a fraud on the Collector by concealing important matters, replied that his impression was, that inasmuch as the Nawab 'did not allow any property to devolve on the plaintiff by legal means, he wanted to shove the boy into a family so that he might get something from the other side.' In other words as the prospective bride was wealthy the object of the Nawab was to get some other provision for his illegitimate son. But whilst it is not possible to find positively that this is so without entering upon the issue of marriage, I may refer to this matter as a possible explanation of the alleged acknowledgment, and as showing that it does not necessarily mean what the appellant contends. As supporting it we have the fact that the Nawab did not apparently concern himself further with the matter of marriage after this attempt had failed. He made no provision for the plaintiff and in his lifetime so dealt with his property as to leave only a small portion available for his heirs whoever they were. It is said that we cannot consider the truth of the statement and that if there was an intention to confer legitimacy, it is immaterial whether the acknowledger believed that his child was legitimate or not. or what the purpose was with which he made the statement. This may be so, if there is an express acknowledgment of legitimacy with intention to confer it. But where we have, as here, to spell out such an intention from a document, we must consider whether there was an intention to confer legitimacy and on this question the purpose for which the alleged acknowledger spoke of 'his boy' and so forth (and it is to be noted that he was the child of his body may, I think, be considered. It is true that the Judicial Committee say that prima facie 'my son' means 'my legitimate son.' But when we use the word prima facie we assume that there may be circumstances which may be considered to ascertain whether the primary meaning is not negatived. In short, and for the aforegoing reasons, my conclusions on the important question of law mooted are these: The appellant has not established an acknowledgment in the sense of a clear intention to confer legitimacy on the plaintiff. If he had I should have been disposed to hold that the respondents had not disproved both a marriage or semblance of marriage, which disproof is necessary to invalidate a valid acknowledgment valid in other respects. I am not, however, satisfied that what is relied on as an acknowledgment was intended to confer legitimacy on the natural son of the Nawab. If the plaintiff was in fact illegitimate the Nawab by using the words 'my boy' 'my son' may have thought that the Collector and Miss Sorabji would understand these words in the sense of legitimate child and did not intend to enlighten them on this matter. What, in short, the Nawab seems to have done was to have made a statement consistent with the illegitimacy of his son possibly believing that both Miss Sorabji and the Collector would naturally interpret it in the sense that the plaintiff who was referred to as a son was the legitimate son. I am not satisfied that his intention was to confer the status of legitimacy on the plaintiff. It follows that the onus is on the plaintiff to show that he was legitimate and I cannot say on the evidence including as alleged admissions the statements made to Miss Sorabji and the Collector, that he has succeeded in showing that the conclusion of Greaves J. is wrong. I agree, therefore, that the appeal must be dismissed with costs.
115. This suit was instituted by Syed Habibur Rahman (whom I will for brevity call Habib) on the 26th August, 1915, to establish his right as the legitimate son and heir of the late Nawab Syed Abdus Sobhan Chowdhury of Bogra, and to recover from the defendants possession of the properties belonging to the Nawab. He further claimed discovery, accounts, and the appointment of a Receiver. The defendants were and are Syed Altaf Ali Chowdhury, the son of Allafunnessa Bibi, the daughter of the Nawab, and Syed Ahmed Hossain Chowdhury, Syed Mahomed Hossain Chowdhury and Syed Noorul Hossain Chowdhury, the sons of the late Syed Abdul Jabbar Chowdhury, a brother of the Nawab, and, failing the establishment of the plaintiff's claim, the heirs of the Nawab. In October, 1915, the plaintiff Habib sold one-half of his right, title and interest in the properties claimed to Mrs. Hyam, who was joined, as party plaintiff in February, 1916. The plaintiff's suit was dismissed with costs by Greaves J. and against that decree the present appeal was filed. Execution for costs was taken out against the plaintiff, Habib, who, thereupon, was adjudicated an insolvent upon his own petition. The Official Assignee declined to prosecute the appeal and has been made a respondent, pro forma. The appeal is thus being prosecuted by Mrs. Hyam alone. Nothing turns upon this, except that one cannot help noticing that the litigation in its present stage is purely speculative.
116. The last Nawab Abdus Sobhan Chowdhury (whom I. will call Abdus Sobhan) died at Calcutta on 2nd July, 1915, intestate. In the plaint as originally framed Habib alleged that Abdus Sobhan had two wives both of whom predeceased him, Taburunnessa Bibi, whose only child was Altafunnessa Bibi, the mother of defendant No. 1, and 'one Mozelle Cohen, a Jewess converted to the Mahomedan faith.' It was alleged that by Mozelle Abdus Sobhan had two children, a daughter Sakina Khatoon alias Hanna, and a son, the plaintiff Habib. After the hearing had commenced the plaint was amended by adding (inter alia) paragraph 7(a), in which it was stated that Abdus Sobhan had acknowledged Habib as his legitimate son and that in ease Habib failed to prove the marriage between his father and mother, he relied on legitimation by acknowledgment. In that paragraph certain particulars and instances of such acknowledgment were set out. The defendants in their written statements denied that Habib was related to Abdus Sobhan and they further denied the marriage of Abdus Sobhan and Mozelle Cohen. It is now admitted before us that Sakina and Habib were born to Abdus Sobhan of Mozelle Cohen. The main question is whether Habib was the legitimate son of Abdus Sobhan either by proof of marriage between his parents or by virtue of his father's recognition of his legitimacy from which such a marriage would be presumed in law. Six issues were framed at the trial of which three only are pertinent to the present enquiry:
(i) Was Mozelle Cohen married to Abdus Sobhan?
(ii) If so, was Habib the legitimate son of Abdus Sobhan and Mozelle Cohen? and (iii) Was there any acknowledgment as pleaded in paragraph 7 (a) of the plaint, if so, what was its legal effect? The form of these issues was objected to by the learned Counsel for the appellant, but in my opinion they are correctly framed having regard to the pleadings of the parties. Nor does it appear that any objection was taken to them at the time of framing or during the trial. In my opinion we should begin with the first issue. If the marriage be proved to have taken place at a date, of course, antecedent to the conception of Habib, then his legitimacy is established beyond all doubt. If again the marriage is disproved then equally without doubt he is illegitimate, and as I understand the law, no acknowledgment by his father could make him legitimate Thirdly, if the marriage or the date of it be found to be 'not proved,' that is, left in uncertainty, then, and then only, does the question of acknowledgment become of importance, or indeed require consideration at all. There is no direct evidence upon the record of any marriage between Abdus Sobhan and Mozelle Cohen having taken place, nor is there any evidence of her conversion to Islam, but that would not be necessary for a valid contract of marriage between them. In his answers to interrogatories filed 1st May, 1916, Habib stated (of course on information) that his mother Mozelle Cohen was converted to the Mahomedan faith at the time of her marriage with Abdus Sobhan which marriage took place according to Mahomedan rites sometime in 1884. That case was considerably modified during the course of the trial and now the earliest dates suggested are February, 1888, or possibly January, 1891. The following genealogical table will show the family of Abdus Sobhan: Syed Masnad Ali Chowdhury.| __________________________________________________| |Abdul Jabbar Tahurunnessa = Abdus Sobhan Chowdhury died 1890. | Chowdhury died 1910. | died 1915.| |_____________________________________ || | | |Ahmed Hossain. Mahomed Noorul Hossain. |Defendant 2. Hossain, Defendant 4. |Defendant 3, ||Altafunncssa = Nawab Nawab Alidied 1897. | Chowdhury = | Sakina Khatoon | (alias Hanna).________________ || | |Zohora. Altai Ali, _____________Defendant | |Hamera. Hossain.
117. It may be convenient to give a short sketch of the life of Mozelle, or Muzlie Cohen, as it appears from the evidence. We first hear of her in the year 1884 at 161, Lower Chitpore Road, where she lived with her parents Benjamin Elias and Furha Cohen on the ground floor. The father was a petty trader. The upper part of the house was occupied by Abdus Sobhan. It does not appear whether or not his wife Tahurunnessa ever resided with hint there. Mozelle was at this time about 12 or 13 years of age and was in that year seduced by Abdus Sobhan. The intimacy tints commenced continued for over two years. In October, 1885, Mozelle and her sister Habiba, who was also in the keeping of a Mahomedan, removed to 13, Radha Bazar Lane, of which a lease for a year was taken in the name of Benjamin Cohen and Habiba at Rs. 25 a month. This was subsequently extended from 1st August, 1886, for 4 years (Exh. 15). It was stated that the parents summoned their daughter Mozelle to 13, Radha Bazar Lane, to get her away from the Nawab but this appears to be incorrect. The two sisters went to live there, the parents remaining for sometime at least at the Lower Chitpore Road house. About February, 1887, relations between Abdus Sobhan and Mozelle broke of, and in September of that year she married Joseph Abraham Ger according to Jewish rites. This union is said to have lasted for only four or five months, when it was dissolved by divorce. The proof of this divorce rests solely upon the evidence of Elias Aakam Abraham, who professes to be a brother-in-law of Mozelle, husband of her sister Rufra. The learned Judge in the Court below appears to have accepted this evidence, though I must confess it appears to me unconvincing. In February, 1888, Mozelle's relations with Abdus Sobhan were resumed and continued till the end of 1890, when according to his diary (Exh. O7) he dismissed her. In January, 1891, she was re-engaged and in October, 1891, the daughter Sakina Khatoon or Hanna was born, In May, 1893, Habib was born. Mozelle continued to reside at 13, Radha Bazar Lane with her children. In 1899, it is said that she formed a connection with, indeed it was suggested that she married, one Aga Golam Mohiuddin Khan (or Bulbul). This was the answer of Habib to the 4th interrogatory. This Aga appears to have identified Mozelle as executant of the agreement (Exh. 17), dated 18th December, 1899, relating to repairs of 13, Radha Bazar Lane. But there is no proof of the marriage on the record. If she was until then the wife of Abdus Sobhan, she must have been divorced before she could marry the Aga. There is no evidence of any such divorce. In August, 1903, Sakina Khatoon was married to Nawab Ali, whose wife, Altafunnessa, had died in 1897. In December, 1903, Mozelle Cohen died in the Duffer in Hospital, and was, we are told, buried as a Mahomedan in the public burial ground.
118. There is a considerable body of evidence on either side bearing on the fact of marriage and rendering it probable or improbable, as the case may be. Admittedly the plaintiffs were unable to adduce any direct evidence of marriage, and it is undoubtedly a weak point in their case that they have been unable to allocate it to any given, or even approximate date. The date 1884 suggested by Habib in his answers to interrogatories was abandoned in the Court below, where we find Mr. Norton, counsel for the plaintiffs, suggesting to a witness in cross-examination the year 1891. In this Court Mr. Hyam for the appellant appeared to favour the year 1888, but declined to commit his client to that or any other date. If Mozelle were married to Abdus Sobhan before 1887, she must have been divorced by him before she could marry Joseph Abraham Ger. Of such divorce again there is no evidence. It certainly appears extraordinary that a man in Abdus Sobhan's position should have contracted a marriage with this woman, and not a trace of any ceremony be left. If was argued by Mr. Hyam that under Mahomedan Law no religious ceremony is necessary, and that is true. But the law requires that the contract should be entered into in the presence of witnesses and although there may. be an 'invalid' marriage without witnesses, it is in the highest degree improbable that, if Abdus Sobhan desired to make the woman his wife, he should not have done so in the ordinary and regular way, even though he was anxious to keep it as secret as possible. The principal facts relied upon by the appellant as giving rise to presumption of marriage are the long cohabitation between Abdus Sobhan and Mozelle Cohen; the fact that children were born to them; Abdus Sobhan's love and affection for Mozelle and his admissions that she was his wife, his affection and solicitude for the children, especially in the matter of Habib's education and proposed marriage; his admissions that Habib was his legitimate son; treatment of Habib as such; the marriage of Nawab Ali to Sakina as an heir of Abdus Sobhan; and statements by Nawab Ali and Altaf Ali said to indicate that they believed the children to be legitimate. Mr. Hyam divided the circumstances under 27 heads, but they may fairly be condensed as above stated.
119. With regard to the presumption of marriage arising from long cohabitation, it is much weakened, if not entirely negatived, by the fact that the cohabitation certainly continued for several years without marriage. In the case of Jariut-ool-Butool v. Hosseinee Begum (1867) 11 Moo. I.A 194 (a case in some respects stronger, in others weaker, than the present), the Privy Council hold that the ordinary legal presumption was that there was no marriage. The fact that children were born of the union is no doubt a fact in favour of the appellant but, in my opinion, it stands almost alone and is certainly not by itself conclusive. The other matters I will deal with later in their order.
120. There is a very strong body of evidence oral and documentary, adduced on behalf of the defendants to disprove the marriage. Most important are the entries in the so-called diaries of Abdus Sobhan (Exhs. O7, O8). These show that from 1886 to 1895 he paid her a salary or monthly allowance of Rs. 100. There are different Bengali words which have been alike, translated 'salary,' but we have no reason to suppose that the translation is at all inaccurate. The entries contain the expressions 'engaged,' 'dismissed,' and 'reengaged.' She is therein referred to as Mozelle or Muzlie Cohen. I am unable to accept Mr. Hyam's suggestion that under Mahomedan Law a wife is so much in the position of a servant that terms of service would be applied to her. The letters of Abdus Sobhan to Mozelle show that this salary, or monthly allowance, continued to be paid to her up to 1902. No change was made on the birth of the children, except that he sometimes directed that a small portion of the Rs. 100 should be given to them, or spent for their benefit. The allowance was never increased. In March, 1890, Tahurunnessa was dying. On 8th March, the very day of her death, she executed a wakfnama, dedicating to God all her properties, which were very considerable. Under that deed Tahurunnessa was to be mutwalli for her life, and after her, her husband Abdus Sobhan, and then Altafunnessa and her descendants. We are not concerned at the moment with the validity of that wakf. The provision which is of importance in the present case, is to be found in Clause 10. It runs as follows:--'Should any mutwalli renounce his religion, change his faith, or become apostate, or marry in a different nationality he shall never be competent to be appointed in the office of mutwalli or to remain as such.'
121. This clause seemed to be the sheet-anchor of the appellant's case and her counsel reverted to it again and again. He argued that Abdus Sobhan was deeply in love with Mozelle, that he was desirous of making her his wife, but that with this provision in view, he had to do it secretly, so secretly as to reveal no trace whatever of that new connection. If as Mr. Hyam suggested Abdus Sobhan had married Mozelle in 1888, before the execution of the wakfnama, it is highly improbable that he would have allowed the condition to find a place in the deed, to which he is a signatory, and thus hang a sword of forfeiture over his own head. If on the other hand he was not then married to Mozelle, this condition with regard to his office affords the strongest possible reason why he should not marry her. It is not as though he was unable to gratify his love or passion without so doing. The lady had been in his, keeping (except for short intervals) for close upon 6 years, and their relations in that respect would not be materially affected by a change to matrimony. If, however, he went through a form of marriage with her, there was the constant danger that it might be discovered, and such discovery might mean the loss of the mutwalliship, in other words, the control and to some extent the enjoyment, of the large fortune left by his wife Tahurunnessa. I was unable to ascertain from the appellant's counsel what this would mean in money. Gouri Gopal Roy states that Tahurunnessa's annual income was Rs. 35,000 or Rs. 36,000, while Abdus Sobhan's income from his paternal estates was only Rs. 4,000 or Rs. 5,000. It is conceded that the property which he got from his wife was largely in excess of that which he got from his father or acquired himself.
122. Then, again, as pointed, out by Sir B.C. Mitter, Nawab Ali Chowdhury, though he took various steps to impugn the wakfnama, never attempted to deprive Abdus Sobhan of the mutwalliship on the ground that he had married out of his nationality and so forfeited his position. A further fact which tells against the marriage is that Mozelle never lived in Abdus Sobhan's house with him as his wife. In almost all the reported cases, to which we have been referred, and where there was an allegation or proof of acknowledgment, the woman was sooner or later taken into the man's house, lived behind the purdah, and was treated as a member of his family. Here we find that Mozelle resided at the Cohens' hired house 13, Radha Bazar Lane, from 1885 down to her death in 1903.She never went to live at Abdus Sobhan's Weston Street house, though she no doubt occasionally visited him there when sent for or of her own accord. When on one occasion he took her with him to Bogra, even then we find that she was not accommodated in his house, but lodged in a house in Fateh Bazar belonging to Abdus Sobhan. It may be that the witness Khidmatdaula Sardar did not give his evidence satisfactorily and that we ought not to accept his testimony that the house in question was used for the lodging of prostitutes and dancing girls. The fact remains that it was a house in the bazar which Abdus Sobhan used for the accommodation of people whom he would not ordinarily put up in his own house. It is incredible, if Mozelle was his lawful wife, that she should not have resided with him during that visit to Bogra. We find that from first to last there was no difference in the treatment accorded to her, which might mark the transition from concubinage to matrimony. Even the births of the children seem to have made no difference. She continued to live in the Radha Bazar Lane house and her children resided there with her up to the date of her death. The letters addressed to her by Abdus Sobhan about the time of Habib's birth are significant. It appears that her mother had written to Abdus Sobhan announcing the birth of a child but without stating the sex. Abdus Sobhan wrote for the information as if it were a matter which did not much concern him. It is inconceivable that if this were the birth of a legitimate son and heir, he would not have taken more interest in the event. A few days later he wrote warning Mozelle not to have the boy circumcised according to Jewish rites. This, in my opinion, shows that he did not at that time regard Habib as the son of a wife. It also shows clearly that at that date Mozelle had not been converted to the Islamic faith, or the admonition would have been quite unnecessary. Then we have the evidence that Mozelle from 1891 to 1896 was taken by Abdus Sobhan to various nautch parties and such like entertainments. It is incredible that, if she was then his wife she would be allowed to go about in public in that way and attend meetings of that class. Then we have the evidence of Thacker's Directories from 1897 down to 1915. There can be no doubt that the information on which those Directories were compiled was furnished by or under the orders of Abdus Sobhan himself. In 1897 we find Altafan-nessa's name entered as his heir-apparent. After her death in that year, from 1898, the heir-apparent is given as Altaf Ali. It was argued for the appellant that the Directories referred only to the wakf estate of Tahurunnessa and Abdus Sobhan as the mutwalli, but had no reference to Abdus Sobhan himself as a zamindar of Bogra. This, however, is clearly contradicted by particulars in the entries themselves which show that the whole of his establishment was given both at Bogra and Calcutta and elsewhere. It is true that Altaf Ali would not be his heir though he would be his successor in the mutwalliship; but the importance of these entries is that the name of Habib does not appear as the heir-apparent of Abdus Sobhan though, if the appellant's case be true, he was at that time the only legitimate son and heir.
123. Throughout the case in the various documents, deeds, letters. diaries, etc., we find Mozelle described as Mozelle Cohen with some slight variations. It is clear that she never took a Mahomedan name as would be expected if she had married Abdus Sobhan, certainly if she had embraced Mahomedanism. She is also described as Miss or Bibi but never, as one would have expected, as Chowdhurani. The first deed is an agreement relating to 13, Radha Bazar Lane, dated 23rd January, 1893. There she is described as 'Muzli Benjamin Cohen, wife of Kzekiel Benjamin Cohen of 2, Bentinck Street'. The letters of Abdus Sobhan to Muzli which cover a number of years are almost invariably addressed to her as Bibi Mozelle or Muzli Cohen. The next formal document is the agreement for purchase of 21, Khyroo Lane, dated 20th June, 1899. There she is described as 'Bibi Mazli Cohen, daughter of Benjamin Cohen,' though she is identified to the Registrar, by Banga, the khansamah of Abdus Sobhan. In Messrs. Sanderson & Co.'s bill in respect' of this purchase submitted to Abdus Sobhan who bought the house for her, one entry speaks of the house 'purchased by you for Mrs. Cohen.' In the deed of conveyence in respect of the same house she is again described as 'Bibi Muzle B. Cohen, daughter of Bibi Amon (it should be Benjamin) Cohen.' In an agreement dated 18th December, 1899, in respect of repairs to 13, Radha Bazar Lane we find that she admitted execution as 'Muzlee B. Cohen' and was identified by Aga Golam Mohhiddin. This is the first time that Aga Golam Mohiuddin appears on the scene. She is there (also for the first time) stated to be of 'Caste Musalman' In 1901 we find Nawab Ali Chowdhury and Abdus Sobhan taking the advice of the late Mr. Woodroffe with regard to the wakfnama and the properties comprised in it. In the case for opinion was set out a proposed deed. In that is a recital to be made by Abdus Sobhan, 'I have had no male issue but had only one daughter Altafunnessa who died leaving you Altaf Ali her only male issue.' It is clear from the opinion that Abdus Sobhan was present at the conference with Mr. Woodroffe at which this proposed deed and cognate matters were discussed.
124. Then we come to the four deeds of 19th February, 1902, executed by Abdus Sobhan in consequence of the advice of counsel and the arrangements following thereon. In the Indenture, Exhibit No. 4, we find this recites that 'Abdus Sobhan has had born to him an only child being a daughter name Syedani Altafunnessa Bibi.' Apart from this statement these deeds are of importance inasmuch as by them Abdus Sobhan, with small exceptions, gave up in favour of Altaf Ali all but a bare life interest in all the properties--both those which came to him from his father and also those which came to him from his wife. It is difficult to believe that had Habib been his leg itimate son and heir he would have thus deprived him of his entire inheritance.
125. It has been argued that the marriage of Sakina in 1903 to Nawab Ali was some evidence of her legitimacy, and, consequently, of that of Habib. This may be conveniently considered in connection with the two letters of Nawab Ali to his son Altaf Ali, Exhibits R and S. As Greaves J. has said. 'These letters are a curious study in the morality of the witness Nawab Ali.' One might go further and say that they are sad disclosures of this witness' true character. He was prepared to go to any length in the commission of what can only be characterised as a gross fraud, short of supporting it on oath in a Court of Law, where no doubt a searching cross-examination might have unpleasant results. At the same time it appears to me certain that at the time of writing, i.e., in 1915, he regarded Habib as illegitimate and was making proposals to his son to put forward Habib as a possible heir of Abdus Sobhan, not because he was the heir, but in order to defeat the claims of the rightful heirs--defendants 2, 3 and 4. It seems that he had married. Sakina with something of this kind in his mind. Her death in 1912 prevented his putting forward her claims as an heir of Abdus Sobhan; but in 1915 he was still thinking of using Habib for a similar purpose. The learned Judge in the Court below has come to the conclusion that Nawab Ali gave his evidence on the whole fairly. It is clear that Nawab Ali must have known, if anyone did, whether there had been a marriage between Abdus Sobhan and Mozelle, or not. It is equally clear from those letters that he believed and knew that there had not.
126. The evidence of Nawab Ali is corroborated by that of Harinath Kabiraj, who was called in by Nawab Ali to attend Sakina in February and March, 1903, i.e., before her marriage. She is described in his books as 'daughter of acquaintance of Srijukta Chowdhury Saheb.' This was done at the request of Nawab Ali, who said that he did not wish to have a bill presented to him bearing the name of a prostitute. In August, 1903, Sakina was married to Nawab Ali. The ceremony took place at Abdus Sobhan's house at Matiabruz, but it is noteworthy that Abdus Sobhan himself was not present. This would be extraordinary, if Sakina was his legitimate daughter.
127. Then we come to the death of Mozelle at the end of 1903. It is incredible that a man in Abdus Sobhan's position would allow his wife to die in a hospital or to be buried in a public burial ground without, so far as can be seen, taking the slightest notice of her illness or death.
128. There is other evidence which bears on the question of marriage, but which I need not discuss in detail. We have the evidence of what has been called the Bogra witnesses, which shows that Abdus Sobhan repeatedly stated that he had no son to succeed him. We have also the evidence of the Bogra officials, who constantly met Abdus Sobhan, but never heard of his having a legitimate son, though it might be expected that they would hear of it if it were the fact.
129. The plaintiffs called three witnesses, who spoke to admissions by Abdus Sobhan that Mozelle was his wife and Habib his legitimate son. These are Prince Delwar Jah Mirza Mahomed Naki Ali Bahadur, a son of the late King of Oudh, Mr. Golam Hossain Cassim Ariff and Robert Clement Joseph. Greaves J. has rejected this evidence as unreliable and I agree with him. Prince Delwar states that sometimes a Jewess used to come to his place, who the Nawab said, was his Jewish wife As he used the word 'Bibi' which does not necessarily mean lawful wife, the evidence is of little value. Mr. Golam Hossain A riff's evidence cannot, I think, be accepted for various reasons. He stands practically alone in making statements about the acknowledgment of this boy. He is clearly in error as to his dates. He puts Habib as living in Weston Street from 1897 to 1907, whereas we know that Habib did not go there till after his mother's death in 1903. He is again mistaken in his dates when he says that he saw Joseph from 1908 to 1910 in Abdus Sobhan's service. Joseph first entered that service in 1910. He speaks of Mozelle living in the Weston Street house, which she certainly never did. It is suggested that he has come to give evidence for the plaintiff in consequence of a dispute with the defendant No. 1 over a recent election. This 'may not be proved, but it appears that they are not in good terms. Joseph is clearly a partisan of Habib and I do not regard his evidence as of any value.
130. The last piece of evidence bearing on the fact of marriage are the letters of Abdus Sobhan with reference to Habib's education at the Madrassa and Aligarh College and to his marriage with Salamat Ali's daughter. I deal with them here as admissions of Habib's sonship and not as acknowledgment in the sense applied to that term in Mahomedan law. The letters written with regard to Habib's schooling appear to me to be mere admissions of paternity and nothing more. There was no particular reason why Abdus Sobhan should not send Habib to school even though he were illegitimate. After his mother's death the boy certainly came to live at Abdus Sobhan's house at Weston Street, though he appears to have been treated there, not as a son and heir so much as a dependant. He was undoubtedly sent to school and Abdus Sobhan paid the fees. If he was so sent his father's name would have to be furnished as a matter of course. So his paternity was stated. I do not think that the letters in this connection show more than that.
131. In his interview with Miss Sorabji and in his letters to the Collector of Chittagong with reference to the proposed marriage, Abdus Sobhan certainly referred to Habib as his son. This, again, may indicate an illegitimate as well as a legitimate son. It is said that we must not presume a fraud upon the Collector; but Addus Sobhan's case, as appears from the letters, was that he had arranged with his old friend, Salamat Ali, in Chittagong for a marriage between their respective children. Salamat Ali had married a Jewess, so that except for the bar sinister Habib was of similar descent to the daughter of Salamat Ali. There is no reason to suppose that Salamat Ali, as an old friend of Abdus Sobhan, was not fully aware of the circumstances. The fraud, therefore, that is suggested is not so serious as it would be if Abdus Sobhan had for the first time in his letters to the Collector endeavoured to palm off his illegitimate son on the wealthy family of Chittagong.
132. It is argued for the appellant that, in deciding the issue of marriage, we must not take into consideration probabilities, but Section 3 of the Evidence Act which defines 'proved' and 'disproved' expressly deals with probabilities. Using the language of that section, I do not believe that any marriage between Abdus Sobhan and Mozelle Cohen ever took place, in other words I find the marriage 'disproved'. In this view of the facts the law appears to me to be well settled. I consider that we are bound by the various decisions of this Court and the Judicial Committee of the Privy Council which meet the case. It was, however, argued by Mr. Hyam that even without actual marriage there might be a semblance of marriage, which would amount to the same thing, and which would imply the legitimacy of the issue. He quoted the opening words of Baillie's Digest of Mahomedan Law on the subject of marriage. 'The intercourse of a man with a woman, who is neither his wife nor his slave, is unlawful, and prohibited absolutely. When there is neither the reality nor the semblance of either of these relations between the parties, their intercourse is termed zina, and subjects them both to hudd, or a specific punishment for vindicating the rights of Almighty God' He argued that concubinage was a semblance of marriage. In that I do not agree with him; nor do I think that that is the result of the authorities. A wulud-ooz-zina is the offspring of adultery, incest or fornication; and fornication is the intercourse of a man with an unmarried woman. The three relationships are put on the same footing and included in the word zina. I do not find that concubinage is ever regarded in Mahomedan Law as equivalent to marriage for purposes of legitimation. This argument appears to be an after-thought of the appellant, whose case has continually been changing from the time when the plaint was tiled. Holding, as I do, that the marriage is disproved, it follows that Habib has been proved to be illegitimate, and could not be rendered legitimate by any acknowledgment or recognition of legitimacy on the part of his father Abdus Sobhan. Greaves J. appears to have thought that there was some conflict between the taw as laid down in the case of Ashruf-ood Dowlah Ahmed Hossein Khan Bahadoor v. Hyder Hossein Khan (1866) 11 Moo. I.A. 94, and the more recent cases. I think that, if that decision be read in the light of the facts of that particular case, it and the cases which immediately follow it will not be found to conflict with the more recent decisions. The question was very fully discussed by a Full Bench of the Allahabad High Court in Muhammad Allahdad Khan v. Muhammad Ismail Khan (1888) I.L.R. 10 All. 289, and it was explained that their Lordships of the Privy Council in 11 Moore's Indian Appeals and one or two subsequent decisions were referring to cases where the marriage, or at any rate the date of the marriage, was left in uncertainty, that is to say, not proved. No doubt, if the words at p. 113 of 11 Moo. I.A. 'a child born out of wedlock is illegitimate; if acknowledged, he acquires the status of legitimacy,' be read apart from the context, they might appear to support the contention that any illegitimate child, if acknowledged, becomes legitimate; but if the paragraph in which these words occur be read as a whole it will be clear that this is not so. Their Lordships were not there dealing with a case where the child was proved to be illegitimate. The distinction pointed out by the Full Bench of the Allahabad Court in the case just cited has been accepted in this Court in the case of Dhan Bibi v. Lalon Bibi (1900) I.L.R. 27 Calc. 801 and in the case of Bibi Fazilatunnessa v. Bibee Kamarunnessa (1904) 9 C.W.N. 352. The idea is not a new one. It appears in a judgment of this Court, delivered in 1863, in the case of Nawabunnissa v. Fuzloonissa (1863) 1 Marshall 428. At page 431 the Judges say:--'It is not enough to show that it is improbable that any marriage should have taken place, but the person on whom, by the establishment of the presumption the obligation devolves of showing that the cohabitation was without marriage, must show either that marriage was impossible between the parties or, which comes very much to the same thing, that no marriage took place. In short the party imputing illegitimacy, and consequent fornication of the father, must bring such proof of the absence of marriage as is practicable, except in cases of such circumstances as would render the marriage illegal.' The matter, in my opinion, has been set at rest by the decision of the Privy Council in the case of Mirza Sadik Husain Khan v. Nawab Saiyed Hashim Ali Khan (1916) 21 C.W.N. 130. There Lord Atkinson said:--'The rule of Mahomedan law is well established: no statement made by one man that another (proved to be illegitimate) is his son can make that other legitimate, but where no proof of that kind has been given, such a statement or acknowledgment is substantive evideace that the person so acknowledged is the legitimate son of the person who makes the statement provided his legitimacy be possible.' He then cited, clearly with approval, Allahdad Khan's Cass (1888) I.L.R. 10 All. 289 above referred to and also Mahammad Azmat Ali Khan v. Lalli Begum (1881) I.L.R. 8 Calc. 422.
133. This is sufficient to dispose of the case and it is unnecessary to consider whether the plaintiffs have succeeded in making out a case of acknowledgment under Mahomedan law, that is, a recognition of Habib's legitimacy by Abdus Sobhan. I may, however, record the opinion which I have formed upon that point, and say that they have failed to prove such an acknowledgment. An acknowledgment may be express or implied. It is no doubt a rule of Mahomedan Law that an acknowledgment or recognition of legitimacy once made by the father cannot be disproved, nor can the father himself be allowed to repudiate it. In the case of an express acknowledgment this rule would not ordinarily give rise to any difficulty. But where the acknowledgment is to be inferred from the facts, e.g., the treatment of the son by the father, it is not always easy to see at what point of time the acknowledgment becomes final and complete. Here putting aside the statements of Prince Delwar, Mr. Golam Hossain Cassim Ariff and Joseph for reasons given above, we are left with such acknowledgment as may be found in Abdus Sobhan's statement to Miss Sorabji and in his letters to the Collector of Chitta-gong. In my opinion the statements do not amount to express acknowledgments. In neither of these cases did Abdus Sobhan say or write, 'This is my son', or words to that effect. All that he did was refer to Habibas his son. If it be said that that implies recognition of his legitimacy, then, in my opinion, the surrounding circumstances must be looked at to see whether that is the necessary, proper and only inference to be drawn from these statements. Looking at the surrounding circumstances in this case, I unhesitatingly say that it is not. In this view of the case I would dismiss this appeal with costs.