ZAMIN ALI Vs. MTAZIZUNNISSA

JUDGEMENT

(1.) This is an appeal by the plaintiffs against a decree of the learned Subordinate Judge of Gorakhpur dismissing their suit for possession of certain property. The following pedigree is relevant: JSPARA>

(2.) The plaint set forth that the pro-iperty in question was owned by Saiyid Aulad Ali and that he died on 3 February 1918 leaving defendant 1, Mt. Azizunnissa his widow and his son Saiyid Sajjad Ali as legal heirs entitled to 2 annas and 14 annas respectively of his estate. In the following year on 5 April. 1919, Saiyid Sajjad Ali died leaving a widow, defendant 2, Mt. Harja Bibi. It was stated in the plaint that Sajjad Ali entered into possession of the entire estate on the death of his father and it was not clearly specified who entered into possession on the death of Sajjad Ali. But it was stated in para. 8 of the plaint that defendants 1 and 2 were in possession on the date of the plaint on 14 September 1926. The claim of the plaintiffs arose through a sale deed of 22 May, 1919 in favour of the plaintiffs executed by defendants 3 to 5, Saiyid Ghaffar Ali, Muhammad Anis and Muhammad Dabir Ali, sons of Mukhtar Ali who died about the year 1897 or 1898. This sale deed was of a half share of these vendors. The suit was contested by defendants 1 and 2 and they alleged in para. 12 of their written statement that defendants 3 to 5 were certainly not the sons of Mukhtar Ali nor could they inherit the estate of Sajjad Ali. It was further alleged taht a 9 anna and 7-1-5 pie share in mauza Chak Jalal exclusively belonged to defendant 1, and this particular allegation is now admitted by the plaintiffs. In para. 17 it was set forth that out of the remainder of the property defendants 1 and 2 were in possession of some property in lieu of the dower debt, and in possession of some property by right of inheritance. If the plaintiffs have any rights, they have no right to take possession so long as as they have not paid the dower debt. The learned Subordinate Judge held that the plaintiffs had failed to prove that their vendors were legitimate sons of Muhtar Ali and he further held that in any case the defendants 1 and 2 were in possession of their husbands properties in lieu of their dower debts. In the appeal before us these two points are in issue. It is to be noted that defendants 1 and 2 dissented from the pleading of para. 12 in the written statement and a month after their written statement on 7 March 1927 their counsel made a statement that defendants 3, 4 and 5 are sons of Saiyid Mukhtar Ali by a "Madkhula" or a kept woman.

(3.) There is a great deal of difference between the original pleading that defendants 3 to 5 were not the sons of Mukhtar Ali and the amended pleading that they were his sons by a kept woman. It is particularly to be noted that defendants 1 and 2 are members of the family and they must have been very well aware of all the circumstances. When therefore they denied that defendants 3 to 5 were the sons of Mukhtar Ali at all, they were making a statement which they knew to be absolutely false. At the outset therefore their case in defence is vitiated by the false statement which they have filed in regard to the paternity of these defendants 3 to 5. We shall first review the evidence on the record as regards the parentage of these three defendants. It is to be noted that these defendants are men of about fifty years of age and therefore it is difficult at this late date to produce direct evidence of the marriage which they alleged took place between their mother and Mukhtar Ali somewhere about the year 1870. No evidence is forthcoming directly of the marriage, nor could we expect such evidence. A witness for the plaintiff Ahmad Husain states that the heard Mukhtar saying that be had married Ghaffar's mother. This witness is 71 years old and is a retired Sub- Inspector. He states that Mukhtar Ali had another wife and that she had a daughter. This is admitted and this daughter Mt. Phundan has given evidence. He stated in cross-examination that the mother of Ghaffar was "Ghair brathri". But of course, among Muhammadans there is no legal bar to the marriage of a woman who though not of the same brathri is a Muhammadan. (His Lordship then discussed evidence and proceeded.) The weight of evidence certainly appears to us to be in favour of the plaintiffs on this point of the legitimacy of their vendors. The argument of learned Counsel for the respondents was that this evidence on the record could not be allowed under Muhammadan Law to prove the point in question.