1866. APPOVIER V. AIYAN. already divided the silver and brass utensils, the parties use these words :-"We have henceforward no interest in each other's effects and debts except friend- RAMA SUBBA ship between us." We find, therefore, a clear intention to subject the whole of the property to a division of interest, although it was not immediately to be perfected by an actual partition. We have examined the whole of these papers with great anxiety and care; we have been very much assisted by the arguments at the Bar; and by the able manner in which the cases on both sides have been prepared. We have no doubt of the true principle which is applicable to the matter, or of the legal effect of this deed of March, 1834. It operated in law as a conversion of the character of the property and an alteration of the title of the family, converting it from a joint to separate ownership, and we think the conclusion of law is correct, viz., that that is sufficient to make a divided family, and to make a divided possession of what was previously undivided, without the necessity of its being carried out into an actual partition of the subject-matter. Upon all these grounds we concur with the decisions of the Courts below, and we think it right to advise Her Majesty to dismiss this appeal, and to dismiss it with costs. As the Appellant admitted, with great propriety, that, provided the conclusion of their Lordships was that the property was divided, then the shares which he now claims have followed a course of descent with which he has no right whatever to interfere, we say nothing upon the question of adoption. Her Majesty's Order will merely confirm the decree of the Court below. On appeal from the Court of the Judicial Commissioner of Oude. 25th Nov. THE suit out of which this appeal arose was origi 1866. According to the Maho medan law, nally brought in the Civil Court at Lucknow, by the Appellants, the son and daughter, and, as such, claiming as sole joint heirs of Nawab Ameenood Dowlah, tion of legiti- deceased, formerly Vizier and Prime Minister of the late King of Oude, against the Respondent, who the presump- ing macy from marriage, follows the bed,and whilst the marriage *Present:-Members of the Judicial Committee - The Right lasts, the child Hon. Lord Westbury, the Right Hon. Sir James William Colvile, of the woman and the Right Hon. Sir Edward Vaughan Williams. is taken to be the husband's child: but this Assessor: - The Right Hon. Sir Lawrence Peel. presumption is not ante-dated by relation. An ante-nuptial child is illegitimate; a child born out of wedlock is illegitimate, but if acknowledged by the father he acquires the status of legitimacy. Such acknowledgment may be express or implied, directly proved or presumed. By the same law, the denial of a son either of Nikalee (regular), or Mootahar (irregular) marriage after an established acknowledgment, is untenable, though supported by a deed of disclaimer and repudiation by the father. Suit by the son and daughter of A., a Mahomedan of the Sheah sect, claiming as his sole heirs, for a declaration of the illegitimacy of B., who claimed to be also a son of A., and co-heir, as the issue of a Moottah, or inferior marriage, and as having been acknowledged by A. in his lifetime as his son. Such marriage not having been proved to have taken place previous to the birth of B. and the acknowledgment of the sonship not being satisfactorily proved, held by the Judicial Committee, reversing the decision of the Court of the Judicial Commissioner claimed to be a son of the deceased Nawab, and as such a co-heir with the Appellants, to establish their right of inheritance and a declaration of the Respondent's illegitimacy. The parties were Mahomedans of the Sheah sect. The Respondent claimed to be a son of the Nawab Ameenood Dowlah, but the Appellants alleged that he was illegitimate; he, however, relied on a Moottah (or irregular) marriage of his mother with the Nawab, and his consequent birth in wedlock, and insisted that the Nawab had in his lifetime acknowledged him as his son; and he further relied on a decision of the Civil Judge at Lucknow in a summary suit for the administration of the goods of the Nawab, under the Acts, Nos. XIX. and XX. of 1841 and X. of 1851, by which he had obtained a certificate of joint administration and title with the Appellants, subject to their right to bring a suit to prove his illegitimacy. The Appellants denied the Moottah marriage, and the declaration and acknowledgment by the Nawab of the Respondent as his son, and they set up and relied on a deed of disclaimer and repudiation of the Respondent, executed by the Nawab in his lifetime, denying that the Respondent was his son, which deed was proved in the suit. The suit was tried and a verdict given by a Punchayet, acting as a jury, the constitution of which was 1866. ASHRUFOOD KHAN V. HYDER HOSSEIN KHAN. of Oude, that B. was not intitled to any share of the property of A., notwithstanding that he had been put in possession of a third by a decree in a summary suit for the administration of A's estate. Held also that the onus of proof of his illegitimacy was upon the Plaintiffs in such subsequent suit. Where a summary suit is instituted to enforce a claim to possession of property, and the question in dispute necessarily involves the right, the Claimant ought to be directed at once to proceed in a regular suit, and not to be left to proceed under the Acts, Nos. XIX. and XX. of 1841, and X. of 1851, which do not determine the right, but only give possession to the prima facie heirs. 1866. DOWLAH AHMED HOSSEIN V. HYDER HOSSEIN KHAN. thus described by the Civil Judge: "Each party ASHRU FOOD named ten, and thus we had an array of twenty of the first Mahomedans at Lucknow, including the High Priest and another Priest of high authority. BAHADOOR Challenges were allowed till only five remained on each side, and every man of this panel, ten in all, was mutually approved by the parties." The fact of a Moottah marriage, by the Nawab, with the Respondent's mother, a person of low station in life, and originally one of his menial servants, was established, but there was a failure of proof that such marriage preceded the birth of the Respondent; the effect of the evidence upon that point, as well as upon the question of his acknowledgment by the Nawab, and of the deed of repudiation, is fully stated in their Lordships' judgment. On the four issues put to them on these matters in the Court below, the Punchayet found, first, that the Moottah marriage took place after the Respondent's birth; secondly, that no acknowledgment by the deceased Nawab that the Respondent was born of his body had been proved, according to the conditions of law, and that, therefore, no deed of repudiation was correct; thirdly, they found that it was not proved that the Respondent was a son begotten of the body of the deceased Nawab; fourthly, they found that had sonship been proved according to law, then, after payment of the marriage settlement of the Muskoohah wife, the son would have received an equal share of the residue with the other son; but, by law, an adopted son had no legal claim to a share, provision depending on the pleasure of the heirs. It appeared that the following question was put to the High Priests, who were of the jury:-What would 1866. DOWLAH AHMED HOSSEIN KHAN BAHADOOR constitute proof of sonship, according to the Sharrah? and they replied, that had the Nawab distinctly stated ASHRU FOOD the Defendant to be his son, whether orally or in writing, that would have been conclusive; or had the son been the issue of the Master by his slave girl, that would also create an heir; or if he was admitted to his right by the acknowledgment of the other heirs, that would suffice. The Civil Judge, Mr. Fraser, by his judgment, dated the 6th of June, 1861, stated his concurrence in and approval of the verdict of the jury, as follows:"If in my own opinion, I differed materially from these findings on the issues, I should still hesitate to touch the unanimous verdict of such a strong body of intelligent and independent Mahomedans, but as my views are substantially the same as theirs, I have no hesitation in accepting their verdict;" and he decreed in favour of the Appellants, rejecting the claim of the Respondent, whom he declared illegitimate, and cancelled the summary decision recognizing him as a joint heir with the Appellants to the late Vizier's estate. 66 The Respondent appealed to the Judicial Commissioner of Oude, and the Commissioner, Mr. Campbell, by his decree, dated the 12th of July, 1861, reversed the decree of the Civil Judge, and held the Respondent legitimate. The material part of his judgment was in these terms :-"In my opinion, in a case like this, both under the well-ascertained principles of the Mahomedan law, and in the form in which the case came before the Court, the onus of rebutting the ordinary legal presumption of legitimacy, by proving illegitimacy, lay entirely on the Plaintiffs. The Punchayet was not a regular Jury, but a selected body very irregularly constituted, several of them having been before mixed up in the case, and having VOL. XI. H V. HYDER HOSSEIN KHAN. |