(1.) The Court of first instance found on the evidence that there was no proof whatever of the marriage of Raja Modenarayan Sing with Barati Begum, the mother of the plaintiff. The Subordinate Judge examined the Rajas of Benares and Bettiah, and it appears also that the Ranis of the late Raja Modenarayan were examined, as also the family priest and other Hindus of high position and respectability; they all deposed to the fact that Raja Modenarayan was a Hindu, and that they, the Raja's equals in caste, associated with him, and ate with him. It is also clear that, after the death of the Raja, when his estate was claimed by the Ranis, neither the plaintiff, his brother, who was then alive, nor his sister, claimed any right to the inheritance. On this question, therefore, it will be sufficient to say that the whole of the evidence proves that the Raja did not marry this lady; that she was his kept mistress; and that the Subordinate Judge has come to a proper finding on this point. We may here say that this point was not raised in argument by the pleader for the respondent, until after the question of whether the Court would permit the amended issues to stand was given against him; but be that as it may, as the case may go further, we have thought proper to record our opinion that the Subordinate Judge has come to a right finding on the evidence, and that all the probabilities of the case support his view on this point, namely, that no legal marriage took place between the late Raja Modenarayan Sing and Barati Begum. It is very difficult for us to conceive how the plaintiff can come into Court, styling himself to be a Mohammedan, when in his examination before the Subordinate Judge, he deposes that neither he nor his brother have been circumcised; the plaintiff can scarcely be called a Mohammedan not having undergone that ceremony; but as his mother was admittedly a Mohammedan, and as at page 265 of Baillie's Digest of Mohammedan Law, Part II, which contains the doctrines of the Imamia Code of Jurisprudence, it is stated that, if one of the parents of an infant be a believer, the construction of the law is in favor of the Islam of the infant." We give the plaintiff the benefit of this construction of law, and permit him to carry on his case as the illegitimate son of Barati Begum. Before leaving the question of whether Raja Modenarayan abandoned the Hindu faith and became a Mohammedan, we find that the Subordinate Judge, on the evidence of the Rajas of Benares, Bettiah, and of Dawoo, and of the Ranis and high priests of Ticcari, of the dewans, amlas, and other independent witnesses, found it proved that the Raja was all along a Hindu, and died in that persuasion; that he worshipped idols, visited on pilgrimage places considered sacred by the Hindus, and performed daily pujas; that the birth of his daughter by one of the Ranis was celebrated in the Hindu form. In short, there is nothing to show chat he embraced the Mohammedan faith. The Subordinate Judge having found on the evidence that Raja Modenarayan did not contract a legal marriage with Barati Begum, held that the children of the Raja by the Begum were illegitimate children, who could claim no parentage through their natural father and mother in the eve of the law." The Principal Sadder Ameen, in support of his finding, quotes a passage from the Shara'l Islam, which is translated at page 305 of Baillie's Mohammedan Law, Part II, and which is to this effect, viz.: That the wahiduzzina or illegitimate child has no nasab or parcentage, consequently neither the zani, or he who has unlawfully begotten, nor she who bore him, nor any of their relations, can be his heir, nor has he any title to their succession." It may be here remarked, as stated by Mr. Baillie, that there is a remarkable difference between the Imamia and Hanitia doctrines and codes on this point; an explanation of this difference is to be found in page 411 of Baillie's Digest, Part I. The Subordinate Judge having found that the plaintiff was the illegitimate sod of Barati Begum by the Raja, and that there was no nasab between him and the Raja or his mother, proceeds to decide the case upon certain admissions which the Subordinate Judge says he can take judicial notice of, and which in his opinion tend to show that the late Ekbal Bahadur, as well as the plaintiff, have publicly admitted themselves to be brothers, and to have derived their birth from the same parents. The Subordinate Judge refers further to what he considers to be an admission in (para 11) the first written statement put in by the defendants; these admissions, to use the words of the Subordinate Judge, are considered by him to be clear as daylight." The Subordinate Judge proceeds to say ''that the deceased Ekbal Bahadur had no other heirs left, save his widow and a natural brother and sister; that the wife, in the absence of male issue, under the chapter on distribution of inheritance, is entitled to one-fourth only, and on no account can she obtain beyond four annas; and that the "remainder would descend or ascend to the distant kindred; but in "default of such, he has a right to succeed whom the deceased ancestor acknowledged conditionally or unconditionally as his kinsman;" and in support of this opinion, the Subordinate Judge quotes from Macnaghten, chapter, I, section 55. Referring to this question of admission, the Principal Sudder Ameen proceeds to quote a passage from the Shama'l Islam. The Subordinate Judge candidly admits that these passages were, to use his own words, Greek to him," and he therefore called in the assistance of three Moulvis versed in Mohammedan law. Two of these Moulvis said that they were ignorant of the text quoted, and the third, a Deputy Collector, Moulvi Ali Hossein, who appears to be of the Imamia sect, gave an opinion that brother and sister can succeed, on the strength "of acknowledgment of the deceased, in spite of their illegitimacy of birth." The Subordinate Judge observes of this opinion that it is not satisfactory, inasmuch as no reasons are given for it," but be finds the opinion supported in Macnaghten's Rule, No. 55; and he further quotes in support of it a Sadder Dewanny decision, dated 28th April 1814, in the case of Mihr Ali v. Kureemmoonnissa Begum 2 Sel. Rep. 112 : 6 I. D. (O. S.) 466.
(2.) He, therefore, gives the plaintiff a decree for a portion of his claim, setting aside his claim to the moveable property as not proved, and holding that the property decreed was encumbered by a mokurrari tenure granted by Ekbal Bahadur to his widow; be also found that the dower of the widow was a charge upon the estate for which the estate was liable. On the question of the marriage between Ekbal Bahadur and Shahebzadi Begum, which was contested in the Court below, but was not raised before us in appeal, the Subordinate Judge found that marriage to have been satisfactorily proved; and amongst other reasons for holding the marriage to be proved, the Subordinate Judge gives a very good one, namely, that the lady accompanied Ekbal on a pilgrimage to Mecca, which it is not at all probable, she would have done had she been his kept mistress, and not his lawful wife.
(3.) Having disposed of the first question taken before us in appeal as to the amendment of issues in the Court below, we proceed, although the question was not pressed before us in argument, to notice the total absence of any proof of the marriage of Raja Modenarayan with Barati Begum; we also remark that no argument was raised before us, with reference to the question of the marriage of Ekbal Bahadur and Shahebzadi Begum, the principal defendant. The case turns upon the main issue between the parties, namely, whether the late Ekbal and Himmat Bahadur, the plaintiff, being admittedly the illegitimate sons of the late Raja Modenarayan Sing by his kept mistress, Barati Begum, the plaintiff, Himmat Bahadur, can succeed to the estate of his late brother, Ekbal Bahadur, under the Mohammedan law, which governs the parties before us; secondly, whether any such admissions have been made by Ekbal Bahadur during his lifetime, by which the plaintiff is entitled to succeed to the estate of his late brother.;