Rampini and Pratt, JJ.
1. This is a suit brought by one Lalon Bibi to establish her right to obtain possession of a 12 annas share of the property of one Khoda Baksh, now deceased. The plaintiff alleges that her mother Parbati, who was a Hindu, became a Mussulman, and was married by Khoda Baksh, that she is the result of their union and was acknowledged by Khoda Baksh to be his legitimate daughter, and that she is accordingly entitled to the share of the property claimed by her.
2. The defence is that Parbati never became a Mahomedan, and was never married by Khoda Baksh, and that the plaintiff never was acknowledged by Khoda Baksh to be his daughter.
3. The first District Judge, before whom the case came, found that Parbati was a Hindu prostitute, who lived with Khoda Baksh as his mistress; she never became a Mahomedan and Khoda Baksh never married her. He found, however, that Khoda Baksh had, before his death, acknowledged the plaintiff as his daughter.
4. When this case first came before this Court, viz., on the 22nd March 1898, it was considered by it that it was necessary to remand the case to the District Judge to have a more explicit finding as to the nature of the acknowledgment made by Khoda Baksh with regard to the plaintiff and as to whether Khoda Baksh had acknowledged her to be his legitimate daughter. The District Judge, a different Judge from the first, has now found that the acknowledgment of Khoda Baksh with regard to the plaintiff went as far as this, and that he meant to and did acknowledge her as his legitimate daughter. He affirmed the other findings of his predecessor and gave the plaintiff the same decree as had been given her before the remand.
5. The defendants again appealed to this Court and on their behalf it has been urged before us that according to the Mahomedan law of the Sunnis, to which sect the parties belong, Khoda Baksh could not legally acknowledge the plaintiff to be his daughter and that no acknowledgment by him could confer on her the status of his legitimate offspring, because Parbati has been found never to have become a Mussulman and so Khoda Baksh could not and did not marry her. The plaintiff is, therefore, it is said, in the position of an illegitimate child, whose paternity is known, and hence she cannot be legitimatized. In support of this view the cases of Mahammad Allahdad Khan v. Mahammad Ismail Khan (1888) I.L.R., 10 All., 289; Liaquat Ali v. Karimunnissa (1893) I.L.R., 15 All, 396; and Aizunnissa Khatoon v. Karimunissa Khatoon (1895) I.L.R., 23 Cal., 130, have been cited.
6. On behalf of the respondent, on the other hand, the Privy Council cases of Mahammad Azmat Ali Khan v. Lalli Begum (1881) I.L.R., 8 Cal. 422; Sadakat Hossein v. Mahomed Yusuf (1883) I.L.R., 10 Cal., 663: L.R., 11 I.A. 31, and Abdul Rozak v. Aga Mahomed Jaffer Bindanim (1893) I.L.R., 21 Cal., 666, have been relied on as showing that an illegitimate daughter in the position of the plaintiff can by the acknowledgment of her father be legitimated and placed in the position of an heir.
7. On behalf of the respondent it has also been contended that the question raised by the appellants does not properly arise in the appeal, as this Court by its order of remand in this case meant to lay down that, if the plaintiff were found by the District Judge to have been acknowledged by Khoda Baksh to be his legitimate daughter, that was conclusive of her right to succeed in this case.
8. We will first dispose of this latter plea. As one of the members of the present bench was a member of the bench that remanded this suit, it may be said with confidence that this Court, when it remanded the case, had no intention of deciding, nor did it decide, the important question of Mahomedan law now raised by the appellants. The object of the remand was rather to see, whether it was really necessary to enter into this question; for, if the plaintiff had not been found to have been acknowledged to be the legitimate daughter of Khoda Baksh, then on the other findings of the District Judge, the whole suit would have failed. It is only when the District Judge has found that the plaintiff was so acknowledged by Khoda Baksh, that it becomes necessary to determine what the legal effect of that acknowledgment was. This Court when it passed the order of remand not unnaturally wished to have the full facts of the case clearly before it.
9. Turning to the cases cited on behalf of the appellants it must be admitted that the case of Mahammad Allahdad Khan (1888) I.L.R., 10 All, 289, fully supports the contention that the plaintiff by Khoda Baksh's acknowledgment could not be legitimated. It is there laid down by Mahmud, J., that 'there is no warrant in the principles of the Mahomedan law to justify the view that a child proved to be the offspring of fornication, adultery or incest could be made legitimate by any act of acknowledgment by the father. The rule is limited to cases of uncertainty of legitimate descent and proceeds entirely upon an assumption of legitimacy, and the establishment of such legitimacy by the force of such acknowledgment.'
10. Mr. Justice Straight in the same case says: 'Where there is no proof of legitimate birth or illegitimate birth and the paternity of a child is unknown in the sense that no specific person is shown to have been his father, then his acknowledgment by another, who claims him as his son, affords a conclusive presumption that the child acknowledged is the legitimate child of the acknowledger and places him in that category.' From this, it would seem that Mr. Justice Straight was of the same opinion as Mr. Justice Mahmud, viz., as expressed in another portion of the latter's judgment, that, children born of zina (which means fornication, adultery or incest) can never be legitimated or entitled to inherit from their father, nor can such children be made legitimate by any kind of acknowledgment where the illegitimacy is proved and established.' It must, of course, be admitted that these observations of Straight and Mahmud, JJ., are obiter dicta, as the decision of this case proceeded on another point. But their views have been followed in two cases, viz., in Liaquat Ali v. Karimunnissa (1893) I.L.R. 15 All., 39, in which ease the child was the result of adultery and was accordingly held not capable of being legitimated by acknowledgment, as his father could not have married his mother, the latter being at the time of the child's birth the wife of another man. The second case in which the views of Straight and Mahmud, JJ., above quoted, were followed, is the case of Aizunnissa Khatoon v. Karimunnissa Rhatoon (1895) I.L.R., 23 Cal., 130, which may be said to be the case of a child whose birth was the result of what would seem to be regarded in Mahomedan law as an incestuous union It was the case of a Mahomedan marrying the sister of his wife. It was held that such a marriage was void and that the children of such marriage were illegitimate and could not inherit. The Judges who decided that case, Petheram, C.J., and Beverley, J., observed:' The doctrine of acknowledgment is not applicable to a case in which the paternity of the child is known and it cannot be called in to legitimate a child which is illegitimate by reason of the unlawfulness of the marriage of its parents. This was distinctly laid down in the case of Mahammad Allahdad Khan v. Mohammad Ismail Khan (1888) I.L.R., 10 All, 289.' The learned Judges proceed to refer to Mr. Justice Ameer Ali's Personal Law of the Mahomedans, at p. 218 of which the following passage occurs: 'A child whose illegitimacy is proved beyond doubt by reason of the marriage of its parents being either disproved or found to be unlawful cannot be legitimatised by an acknowledgment. Acknowledgment has only the effect of legitimation where either the fact of the marriage or its exact time with reference to the legitimacy of the child's birth is a matter of uncertainty.'
11. Mr. Justice Ameer Ali in his Students' Handbook of Mahomedan Law, p. 54, has said 'the person acknowledged must be of unknown birth. If the parentage is known to belong to somebody else, no ascription can take place to the acknowledger.'
12. The present is an instance of the third of the cases referred to by Mr. Justice Mahmud, viz., where the child is the result not of adultery or incest, but of fornication. It would seem to us that on the authorities cited above, we must hold that the acknowledgment by Khoda Baksh was of no avail and could not confer on the plaintiff the status of a legitimate child or of an heir. The paternity of the plaintiff is quite certain. It is admitted that Khoda Baksh was her father. Her mother is also known. She was Bai Parbati, a Hindu prostitute, whom Khoda Baksh did not marry and could not marry, for she was a Hindu at the time of Khoda Baksh's death,
13. The lower Courts rely on a passage at p. 277 of Mr. Justice Ameer Ali's Lectures as showing that the plaintiff might be legitimated by acknowledgment. The passage in question is to the effect that 'when a Mahomedan marries a Hindu woman, the marriage is only invalid and does not effect the legitimacy of the offspring. I have already described the reasons which led to the prohibition of inter-marriages between Moslems and idolatrous females and also between non-Moslems and Moslemahs. In either case as already related though the marriage is invalid, the issues of the union are legitimate.'
14. This passage has, however, in our opinion no application to the present case; for, in this case, there is now no question of marriage. It has been found that Khoda Baksh never married plaintiff's mother.
15. There appears to us to be no direct authority against the above cited cases and views. The Privy Council cases quoted by the learned Counsel for the respondents do not deal directly with the questions arising in the appeal. The case of Mohammad Azmat Ali Khan (1881) I.L.R., 8 Cal., 422, appears to us to contain no passages directly in point. In the case of Sadakat Hossein (1883) I.L.R., 10 Cal., 663, their Lordships of the Privy Council considered they were relieved by the view they took of the evidence from offering any opinion upon the very important question of law which was raised by the counsel for the appellant, namely, whether, if there had been this marriage (i.e., between the mother of the claimant and a third person, subsisting at the time of her connection with the acknowledger and of the conception of the claimant) the offspring of the adulterous intercourse could have been legitimated by any acknowledgment. Their Lordships therefore expressly declined to decide the point subsequently decided in Liaquat Ali v. Karimunnissa (1893) I.L.R., 15 All., 396.
16. The third case is that of Abdul Razak v. Aga Mahamed Jaffar Bindanim (1883) I.L.R.., 21 Cal., 666. This case has some points of similarity with the present case. It was a case in which the question was of the legitimacy of a son born to a Mahomedan by a Burmese woman. In this case, as in the present, the Court below found that the Burmese woman had never been converted to the Mahomedan religion and that no marriage of the parents had ever taken place. But it was further found that no acknowledgment of the son's being of legitimate birth had taken place and that a mere recognition of sonship was insufficient to effect the son's legitimation. On this ground the suit was dismissed. Now, in this case no question as to whether the father could have entered into a valid marriage with the mother, without her having relinquished Buddhism, arose, or was decided. Hence, it appears to us that case affords no assistance to us in deciding the present, one. But the learned Counsel for the respondent contends that this question was impliedly decided, and that if their Lordships of the Privy Council had not thought that the son could in the circumstances have been legitimised by acknowledgment by the father, they would not have considered and decided whether he had acknowledged him.
17. We are, however, unable to concur in this view. Whatever may have been passing in their Lordships' minds, they have, in their judgment, said nothing which can be any guide to us in deciding the present case.
18. The learned Counsel for the respondent further urges that, as there was no insurmountable obstacle to the marriage of the parents of the plaintiff, that is to say, as the plaintiff's mother, Parbati, might have been converted to Mahomedanism and as Khoda Buksh might then have married her, the plaintiff's acknowledgment by Khoda Buksh could effect legitimation. But the learned Counsel has cited no authority for this proposition, except the general, rule laid down in the text books and in many cases of the Courts that children of unknown paternity can be legitimated by acknowledgment. But this does not seem to us to have any direct bearing on the question raised by the appellant in this appeal.
19. For these reasons we feel constrained to set aside the findings of the lower Court, and to hold that the plaintiff could not in the circumstances be legitimized by Khoda Baksh's acknowledgment. She is therefore not one of his heirs, and cannot succeed in this suit.
20. The appeal is accordingly decreed and the suit dismissed with costs.