SHARMA, J. - (1.) THIS is a plaintiffs' appeal and arises out of a suit brought by them against the respondent Mr. Bhonri for a declaration that the will dated the 17th of July, 1947 purporting to be made by Panah Mohammad in favour of Mst. Bhonri is void.
(2.) THE plaintiff No. 1 Mst. Khatoon is daughter of Panah Mohammad and the plaintiff No. 2 Hussain Mohammad is the husband of plaintiff No. l. THEir case was that Panah Mohammad had executed a will in their favour of his entire property on the 29th of May, 1945, and therefore, they were entitled to the entire property left by Panah Mohammad. THEy averred that Mst. Bhonri in whose favour the will of 17th July, 1947, had been made was not the legally wedded wife of Panah Mohammad and the will was the result of a fraud on the part of Mst. Bhonri. THEy, therefore, prayed that the will dated the 17th of July, 1947 be declared void and ineffective. Several issues were struck by the learned Munsif of Sangod who tried the case. The only material issues as far as this appeal is concerned are issues Nos. 1, 2 and 4 which are as follows : - (1) Is Mst. Bhonri not the wedded wife of Panah Mohammad and what effect does this have on the suit? (2) Is plaintiff No. 1 the daughter of Panah Mohammad and had Panah Mohammad no right to make the will in question without the consent of the plaintiff No. 1? (3) Should the above mentioned will be declared void? The learned Munsif decided issue No. 1 in the plaintiff and against the defendant inasmuch as he held that the defendant Mst. Bhonri was not the legally wedded wife of Panah Mohammad. One issue No. 2 and 4 he gave his finding that the will was valid upto the l/3rd share of the property of Panah Mohammad and invalid so far as the remaining 2/3rd is concerned. He consequently, partially decreed the plaintiffs' suit and declared that the will in favour of Mst. Bhonri was invalid to the extent of 2/3rd share of Panah Mohammad's property. Against this decree of the learned Munsif, the defendant Mst. Bhonri went in appeal and the learned District Judge, Kotah held on issue No. 1 that Mst. Bhonri was the legally wedded wife of Panah Mohammad. He further, held that the plaintiff Mst. Khatoon and her three sisters were entitled to 7/8th share of Mohammad's property and the defendant Mst. Bhonri was entitled to 1/8th share. As however, three other sisters of Mst. Khatoon had not objected to the will in favour of Mst. Bhonri, he allowed the appeal in so far as he made a declaration that will was invalid only to the extent of 7/32, which was the plaintiff's share. Against this judgment and decree of the learned District Judge, the plaintiffs have come in appeal. I have heard Mr. R. G. Sharma on behalf of the plaintiff appellants and Mr. Kalyan Prasad on behalf of the defendant. With respect to issue No. 1 it was argued by Shri Sharma that the lower court has wrongly held that Mst. Bhonri was the legally wedded wife of Panah Mohammad. He argued that there was no direct evidence about marriage and that the defendant had failed to prove that she had obtained divorce from her former husband Akbar Shah. The marriage was therefore, not proved as a fact and even if it were proved, it was invalid because there was no proof of divorce of Mst. Bhonri by her former husband. On behalf of the respondent it was argued by Shri Kalyan Prasad that in the first instance, there, was the direct evidence of Mst. Bhonri about her legal marriage with Panah Mohammad and besides there was the clear acknowledgment of Panah Mohammad that Mst. Bhonri was his legally married wife. This acknowledgment is contained in the will in dispute dated the 17th of July, 1947 and also to a certain extent in the will of 29th May, 1945 which has been made in favour of the plaintiffs. He further argued that even from the evidence produced by the plaintiffs, it was clear that there was a question of the marriage of Mst. Bhonri with Panah Mohammad and they went to Kazi and showed him a talaqnama, but the Kazi could not perform the Nikah at that time because no witness to the talaqnama was produced by Panah Mohammad or Mst. Bhonri. On a reference to the record, I find that the learned District Judge is not altogether correct in saying that there was no direct evidence as to the marriage of Mst. Bhonri with Panah Mohammad. This direct testimony is furnished by the evidence of Mst. Bhonri herself. If it stood alone, it might not have been considered to be sufficient evidence to prove her marriage with Panah Mohammad but there is the clear and unequivocal acknowledgment by Panah Mohammad in the will dated the 17th July 1947 that Mst. Bhonri was his legally wedded wife. According to Mohammedan Law, a presumption arises legal marriage from the fact of the acknowledgment by the man of the woman as his wife (Mulla Mohammedan Law Thirteenth Edition) para 265 (c), page 236 ). Even in the will executed in favour of the plaintiffs, Panah Mohammad has stated that the two plaintiffs, in whose favour he had made that will, would succeed to the property after his death and that of his wife. It is admitted by the plaintiffs that the mother of Mst. Khatoon had died long before the year 1945. According to the plaintiffs, therefore, there was no legally wedded wife of Panah Mahammad living at the date of the said will. However, the fact that Panah Mohammad states that after the death of his ownself and his wife, the property would devolve upon the two plaintiffs, read with his clear acknowledgment in the will of 17th of July, 1947 shows that what he meant by the word wife in his previous will was none other but Mr. Bhonri. Even from the plaintiffs' evidence, it is clear that Mst. Bhonri had been living with Panah Mohammad and that once he went to a Kazi for a Nikah and a document was produced before the Kazi which he asked Panah Mohammad to prove by the statement of witnesses. As however no witness could be produced at that time, Nikah could not be performed. From this it is clearly proved that Panah Mohammad had a mind to marry Mst. Bhonri. At that time marriage might not have been celebrated, but there is no impossibility in the marriage having taken place afterwards. The plaintiffs' evidence also shows that Panchas would not have consented to the marriage between Panah Mohammad and Mst. Bhonri had not been divorced by her former husband. The fact that the Panchas took Panch Mohammad and Mst. Bhonri to |a Kazi shows that so far as they were concerned, they did not think that marriage would be illegal. It has been observed by their Lordships of the Privy Council in the case of Sadik Husain Khan vs. Hashim Ali Khan (1) (AIR 1916 P. C. P. 27), that : - "an acknowledgment by a father of a person as his son Prima facie means his legitimate son. No statement made by one 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. " In para 268 of Mohammedan Law (Thirteenth Edition, page 236), the learned author has cited on the authority decided cases that: - "presumption about marriage may be made from any of the three facts in the absence of direct proof: - (a) prolonged and continual cohabitation as husband and wife, (b) the fact of the acknowledgment by man of the paternity of the child born to the woman, provided all the conditions of a valid knowledge- ment mentioned in sec. 334 of the same book are fulfilled. (c) the fact of the acknowledgment by the man of the woman as his wife. " In the above case before their Lordship of the Privy Council, the presumption was made under clause (b) and although there was no satisfactory direct evidence of marriage, it was held that legal marriage was proved. Similarly, in the case of Imambandi and other vs. Haji Mutaadi and others (2) (AIR 1918 P. C. 11), their Lordships held that: - "under Mohammedan Law when a man acknowledges the children of a woman as his legitimate issue, the presumption arises that the woman is this lawfully wedded wife. " This presumption too is the same as contained in clause (b) of Mulla's Mohammedan Law. In the case of Sayed Habibur Rahman Chowdhury and another vs. Syed Altaf Ali Chowdhury and others (3) (AIR 1922 P. C. 159.), their Lordships took the same view and observed that: - "the acknowledgment must be not merely of sonship, but must be made in such a way that it shows that the acknowledge or meant to accept the other not only as his son, but as his legitimate son. " Their Lordships further observed that: - "it must not be impossible upon the face of it. The acknowledgment may be repudiated by the acknowledgee. But if no objections occur, then the acknowledgment has more than a mere evidential value. It raises a presumption of marriage, a presumption which may be taken advantage of either by a wife claimant or a son claimant. " In the case of Ahasanulla vs. Najabatali and others (1), it was held that: - "a declaration by a person that another person is his legitimate son bora of his loins and in the womb of his married wife is an acknowledgment not merely of sonship but of legitimate sonship. And if direct evidence of marriage is adduced and the court disbelieves it the effect of presumption arising from the acknowledgment is not lost and the failure does not absolve the opposite party from disproving or proving the impossibility of marriage and thereby rebutting the presumption. " All the above rulings no doubt deal with a presumption give in clause (b) of para 268 of Mulla's Mohammedan Law, but if presumption in favour of the legality of the marriage of a woman can be made from the acknowledgment by the man of the paternity of child born to the woman, it could be made with still greater force from the fact of the acknowledgment by the man of the woman as his wife. The point came up directly for consideration before a Division Bench of Oudh Chief Court in the case of Mst. Bashiran vs. Mohammed Hossain and others (2), and it was held that "an acknowledgment by a Mohammedan that a certain woman is wife raises a presumption of marriage between the parties" and the observations of the Calcutta High Court in Ahasanulla vs. Najabatali (l), referred to above that - "even if direct evidence of marriage is adduced and the court disbelieves it, the effect of presumption arising from the acknowledgment is not lost and the failure does not absolve the opposite party from disproving or proving the impossibility of marriage and thereby rebutting the presumption. " were quoted with approval. In the present case, no evidence has been produced on behalf of the plaintiffs to show that marriage between Panah Mohammad and Mst. Bhonri was an impossibility. I have, therefore no reason to go against the finding of fact given by the learned District Judge that Mst. Bhonri was the legally wedded wife of Panah Mohammad. Coming to issues Nos. 2 and 4, the learned District Judge has held Panah Mohammad was not entitled to leave to his wife by will more than her own share which comes to 1 /8th and that he could not by will bequeath a share which would legally go to his daughters. However, holding that out of three daughters of Panah Mohammad, only one i. e. , the plaintiff No. l has challenged the will and the others have not, the plaintiff was entitled to her declaration in respect of her own share which comes to 7/32 and has declared the will invalid to that extent only. In this view the learned District Judge was right as would appear from the following passage in Mulla's Mohammedan Law (3) that - "a bequest to an heir is not valid unless the order heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share. " At present only the plaintiff No. 1 has challenged the will and all that her share should not be affected. The decree of the learned District Judge therefore, that the will was invalid to the extent of 7/32 i. e. , the share of the plaintiff was perfectly justified. The appeal to my mind has no force and it is dismissed with cost to the contesting respondent. .;