Case No: Civil Appeal No. 68 of 1983
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Mr. Khandaker Mahbuhuddin Ahmed,,
Citation: 38 DLR (AD) (1986) 133
Case Year: 1986
Appellant: Khorshed Alam
Respondent: Amir Sultan Ali Hyder
Subject: Family Law,
Delivery Date: 1984-3-22
F K M A Munim, CJ.
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
Chowdhury A.T.M. Masud, J.
Khorshed Alam @ Shah Alam
Amir Sultan Ali Hyder and another
March 22, 1984.
Plaintiff-respondent instituted O.C. Suit No. 457 of 1977 for a declaration that the defendant-appellant was a child of unknown parentage and for a further declaration that the plaintiff is the only son of late Amir Ali Mia, Mutwalli of Salamat Mia Wakf Estate of Rajshahi and as such was eligible for the Mutwalliship of the Wakf Estate.
The defence case is that Amir Ali had 4 wives. First first wife Sakina Bibi died childless when Amir Ali married Monowara in 1928 and out of the said wedding defendant Khorshed Alam was born in 1933. On Monowara’s death in 1935 Amir Ali married Zohura Khatun in 1935 who later died in 1966. On the averments stated above the suit was brought out. The trial Court as well as the appellant Courts below discarded the defence case and decreed the suit.
The Appellate Division on correct analysis of the evidence on record and the principles of law involved in the case set aside the judgements of the Courts below and dismissed the suit on the findings that the plaintiff failed to prove that defendant Khorshed Alam was not the son of Amir Ali and that he was the son of prostitute Baramoni.
Acknowledgement by Amir Ali of sonship of defendant Khorshed Alam
Khorshed Alam proved Amir Ali’s acknowledgement and a written document Ext. H backed up by enormous documentary evidence that Amir Ali acknowledged him as his son. The onus was heavily on the plaintiff to disprove Monowara’s marriage with Amir Ali, which he failed to discharge.
The Courts below, including the High Court Division, wrongly placed the onus of proof upon the defendant. In that view of the matter, the concurrent findings of facts are no findings in the eye of law and should be interfered within the interest of justice in exercise of revisional power under section 115 of the Code of Civil Procedure…………….(42)
Practice and procedure
When some principles of law or procedure are violated leading to miscarriage of justice, higher Court can always interfere…………….(27)
Cases Referred to-
Md. Alladat Khan vs. Md. Ismail Khan 10 ILR (All) 289; Habibur Rahman Chowdhury vs. Altaf Ali Chowdhury 48 LA. 114; Sadek Hussain Khan Vs. Hashim Ali 43 I.A 212; Mohabbat Ali Khan Vs. Md. Ibahim Khan 56 I.A. 201; Md. Baikder Hussain Khan Bahaour Vs. Shurfoon Nessa Begum 8 I A. 136; 11 M A 94.
Not represented-The Appellant.
Khondoker Mahbubuddin Ahmed, Senior Advocate (Mahbubey Alam, Advocate with him) instructed by Md. Aftab Hussain, Advocate-on-Record—For the Respondent No. 1.
Civil Appeal No. 68 of 1983.
(From the judgment and order dated May 5, 1981 passed by the High Court Division in Civil Revision No. 263 of 1981.)
Fazle Munim CJ.
I have gone through the judgments written by Badrul Haider Chowdhury and Shahabuddin Ahmed, JJ. I concur with the decision of Badrul Haider Chowdhury, J.
Badrul Haider Chowdhury J.
This appeal by special leave raises an important question of public importance namely whether the principle of acknowledgement of son ship under the Muslim Law has been correctly appreciated by the High Court Division as well as by the courts below.
3. Facts are as follows: Plaintiff respondent Instituted a suit being O.C. Suit No. 457 of 1977 for a declaration that the defendant appellant was a child of unknown parentage and also for a declaration that the plaintiff is the only eldest son of late Amir Ali Mia who was the Mutwalli of Salamat Mia Wakf Estate at Rajshahi and eligible for the Mutwalliship of the Wakf Estate in terms of the Waqfnama.
4. One Salamat Hernia created a Wakf deed dated 1.7.30 and the Wakf was the first Mutwalli. After his death Amir Ali Mia, the brother's son of the Wakf became the Mutwalli in 1933 and continued as such till his death on 5.4.1967. After the death of Amir Ali a dispute arose with regard to the Mutwalliship of the Wakf Estate. The plaintiff claimed that he is the surviving eldest- son of Amir Ali Mia by his third wife Mst. Meher Shamsun Nahar. He, in terms of the wakf deed, was entitled to be appointed as Mutwalli on the death of his father. The defendant No. 1 Khorshed Alam also claimed to be the eldest son of Amir Mia by his alleged second wife namely Monowara Khatun.
5. Both the plaintiff and the defendant applied to the Wakf Administrator for being appointed as Mutwalli. The Wakf Administrator appointed plaintiff as Mutwalli by his order dated 5.12.67 and the defendant preferred an appeal before the District Judge, Rajshahi but: the appeal was dismissed on contest. Thereafter the defendant moved the High Court Division and succeeded in getting an order in his favour. The plaintiff thereafter moved the Supreme Court but the order of the High Court Division was upheld. It was observed that the question of legitimacy of the defendant would be decided by a competent civil court and till such decision the defendant was to contains as the Mutwalli (vide 29 D.L.R.) the first round was thus over.
6. Now the second round. The plaintiff brought the aforesaid suit for the declaration mentioned above. His cases were that Amir Ali Mia had three wives. His first wife Sakina Bibi had several issues but ail of them died during their infancy. His second wife was a tribal lady from Siliguri named Zohura Khatun who had and issue and as such she with the permission of her husband Amir Ali Mia adopted a son of a prostitute called Baramoni of Natore. The plaintiff stated that this adopted son is defenders Khorshed Alam and it was contended that defendant Khorshed Alam was never the legitimate son of Amir Ali Mia and as such was not entitled to be the Mutwalli. Plaintiff's further case was Amir Ali Mia married for the third time in 1939 Mst. Meher Shamsun Nahar from Bogra and 3 sons and "five daughters were begotten out of the third marriage. The plaintiff is the eldest son by this wife and is entitled to be the Mutwalli of the Wakf Estate on the death of his father.
7. The defendant No. 1 Khorshed Alam contested the suit contending that Amir Ali had four wives; His first wife was Sakina Bibi, second wife was Monowara Khatuns, mother of the defendant No.1 son his third wife was Zohura Khatun and the 4th wife was Mst. Shamsun Nahar, the mother of the plaintiff. The defendant stated that Monowara Khatun, the mother of the defendant No. 1 was married by Amir All Mia at Calcutta in 1929 and the defendant No. 1 Khorshed Alam was born out of the wedlock in 1933 and as such he is the eldest son of Amir Ali. Defendant further contended that at the old age of Amir Ali when he was ailing and was completely under the influence of his 4th wife Shamsun Nahar he began to disown the defendant No. 1 as his son though all along acknowledged defendant as his son.
8. On these averments the suit was fought out and the trial court came to the conclusion on evidence that the defendant No. 1 was not the son of Amir Ali nor Amir Ali acknowledged him "as his legitimate son''. The learned Munsif further held that it could not be proved that Monowara Khatun, mother of defendant No. 1 was one of the wives of Amir Ali. The appellate Court below affirmed the judgment and decree passed by the Munsif. It was held that the plaintiff proved his case that the defendant was not the legitimate son of Amir Ail. The Appellate Court below farther found that there was no proof of marriage of Amir Ali Mia with Monowara Khatun. Tile appellate Court below farther noticed that as far back at 1965 defendant No. 1 could not give the name of his mother or the place where he was born, in this view of the matter the judgment of the trial court was affirmed. The matter came before the High Court Division in Civil Revision being C.R. No. 263 of 1981; the learned Single Judge noticed such a contradiction of the defendant to his previous deposition as to the came of hit mother and place of his birth and further noticed plaintiff's positive case by observing:
The learned Single Judge further noticed that the very existence of Monowara Khatun was challenged by the plaintiff and the defendant has not been able to prove marriage" between Amir Ali Mia and Monowara Begum and as such the alleged marriage of Amir Ali with Monowara Begum has been disproved and concluded that the question of acknowledgement by Amir Ali of the defendant No.1 "as hit ion" is of no avail.
Leave was granted on the following term:
Plaintiff is the respondent. He brought the suit:
(a) For a decree of declaration to the effect that the defendant No. 1 is the child of some unknown parentage other than that of Md. Amir Ali Mia; and
(b) for a decree of declaration that the plaintiff is the only eligible person to be appointed as Mutwalli of the Salamat Hossain Wakf Estate enrolled in E.G. No. 4028 of Rajshahi in terms and conditions of the Wakf deed there of.
9. As has been noticed that this is a second round and on previous occasion over the Mutwalliship the controversy in issue was more or less the same namely, that the defendant Khorshed Alam is the child of some unknown parentage other than that of Mr Amir Ali in paragraph 15 of the plaint it is stated that "the defendant is an illegitimate child of an unknown parentage who was only reared up by Md. Amir Ali Mia by way of a token of love to his said 2nd barren wife Zoaura Khatun who died in the year 1965. "Plaintiff examined 16 witnesses. The evidence of the plaintiff is more or less the same, namely, that Khorshed Alam is a son of one Baromoni of Natore and Amir Ali adopted him as his son. Amir Ali had three wives and no wife by the name Monowara Khatun as contended by the defendant. The defendant's case is that Amir Ali had 4 wives, the first wife Sakina, died in 1941-42 who had given birth to number of children but all were dead. He married Monowara in 1929 and the defendant Khorshed Alam was born in the wedlock of this marriage, 1933 Monowara died in 1935. Thereafter Amir Ali married Zohura Begum in 1935 and she died on 6.2.66. The 4th wife plaintiff's mother Mst. Meher Shamsun Nahar who was married to Amir Ali in 1939 and she is still alive. Be it noted that Amir Ali died in April, 1967 about a year after the death of Zohura. The contention of the plaintiff is that Amir Ali adopted this child Khorshed Alam when he was a boy 2 years old and gave him to Zohura for rearing him up. This was done only to comfort Zohura who was a barren woman. Evidence was led that Khorshed Alam actually is the son of prostitute namely Baramoni of Natore who is still alive. P.W.1 the plaintiff himself stated: "the said Zohura had no issue and she was barren. At Natore she got one boy about 2 year old in adoption from one Baramoni a prostitute of Natore and that boy is defendant No. 1" That was the main case of the plaintiff it is not necessary for this court to go into the details of evidence that was led by the parties for it is apparent that the bone of contention between the parties over the Mutwalliship was so severe that the witnesses can safely be discarded as being part san witnesses They were obviously hostile to one another and it is dear that neither was over scrupulous in what he swore to one may be fairly set off against the other as neither can be safely trusted. But the battle was fought on the ground that Khorshed Alam is son of one Baramoni of Natore. Onus was heavily on the plaintiff but this onus was not discharged. The evidence of the mother clearly shows this and, none of the witnesses could make any positive case to prove the theory that Khorshed Alam is the son of Baramoni. Moti Sk. P.W 5 claimed that Baramoni gave the son of her to Amir Ali and Amir Ali took the son at the request of Raja Birendra. He served as a Pakhawala in the Rajbari. In cross-examination he conceded that the boy was no handed over at the Rajbari nor was he present when the boy was handed over to Amir Ali by Baramoni. The rest of the witnesses on this point can better be ignored because they all gave a parrot like story to suit the plaintiff's case. Baramoni was not cited as by the plaintiff though she private.
10. It is the question of Status of an individual. When that status is assailed by a positive case much higher decree of proof was necessary and the courts below unfortunately had overlooked this point completely. The trial court ought not to have allowed such evidence to be led in when mere verbal statement damaging the social status of a person is being made. The entire plaintiff's evidence on this point ought to have been discarded by the trial court and the court of appeal overlooked the fact that the court below had ignored the presumption of law end such presumption can only be rebutted by positive feet and not by mere assertion or ipsi dixit. It is the plaintiff who brought the suit and he took up the positive stand that the defendant is a son of one Baramoni and since this onus was not discharged the plaintiff ought to have been non-suited. Unfortunately that did not happen. The courts below have decreed the snit and we shall come to this later as to whether such suit can at all be decreed.
11. The defendant took a consistent case that his mother was Monowara who was married by Amir Ali in 1929 at Calcutta. She gave birth to this son, the defendant, in 1933 and 2 years later she died in 135. It is true that the boy was reared up by Zohura, the 3rd wife of Amir AH whom he married in 1935 and died on 6.2.66. There was no onus on the defence to prove the maternity. To be more clear, law has not placed any onus on him to prove as to in whose womb he was born. The fact is that he was born obviously in the womb of a woman. He was reared up according to his own statement by Amir Ali who introduced him in the society as his son and he was reared by Zohura who admittedly bad no issue from 1935 right upto 1953 not a word was said by Buy group challenging the acknowledgement of a sonship by Amir Ali. Formal evidence was led by the defendant to show that Amir Ali had acknowledged the defendant as his son. He was admitted to a school and the Headmaster of that School gave certificate to that effect e.g. Ext.B which shows the defendant as son of Amir Ali. Ext. C is the deposition by Amir Ali before a Magistrate on 14.11.35 where he stated ''Shah Alam aged 21/2 is my son by my second wife". Kabinnama Ext.D dated 23.3.51 when Khorshed Alam married Jahanara Begum, his first wife and he was shown as the son of Sk. Amir Ali and the marriage was solemnised in the house of Amir Mi, (column 18). Khurshed Alam's first wife died and he married again in 1953. This time he was married to Nazle Begun @ Zorna and the Kabinnama is dated 13.3.53. There he was shown as son of Amir Ali and who is Nazle Bagum. She was none but the daughter of the sister of the plaintiff’s own mother, in other word, the plaintiff’s first cousin (Khalato sister) and Amir Ali was himself one of the witnesses of this marriage. Rent Receipt Ext. E series between 1953 to 1957 show that Khorshed rented a part of the wakf property from his father Amir Ali and he was shown as first son of Amir Ali. The most important document Ext. G Ekrarnama for Hiba-bil-ewaz executed by Amir Ali 19.3.53 were he stated :
We shall deal with the later part of this Ekrarnama in connection of the point of disclaimer of the acknowledgement or ifs repudiation at the appropriate place. Affidavit sworn by Bibi Gauharun Nessa Ext. H, Ext. H (1) by Roushan Akhter Firoza Ahmed who was the relation of the family have proved the cane beyond the doubt that the defendant was always acknowledged as the son of Amir AH. Series of letters were produced between the father and the son written in the year 1953, 1954, 1955 and 1956. Ext. L series which is the letters between the father and the son concerning family affairs. Khorshed Alam contested an election and evidence was led to show that his father Amir Ali asked Mussalli after Jumma prayer to support candidature of his son. Apart from the oral evidence that was adduced by the defendant to show that Amir Ali acknowledged Khorshed Alam as his son, this judgment proceeds on the basis of the written acknowledgement of the sonship and the legal consequence thereof.
12. Baillie says that the acknowledgement by a man of a child is valid under the following circumstances: first, the ages of the parties must admit of the party acknowledged being born to the acknowledger: as otherwise he would be manifestly a liar. Second, the descent of the person acknowledged must not be already established from another; for if it were so, that would prevent its establishment from any bat him. 3rd, he must confirm the acknowledger in his acknowledgement if he can give an account of himself; for one he can do so in his own power contrary to the case of a child who cannot account for himself. (A Digest of Mohammadan Law—Baillie P 405).
13. Amir Ali acknowledges Khorshed Alam as his son and Khorshed Alam acknowledged Amir Ali as his father. So the condition, No. 1 and 3 are fulfilled. Now what about second condition, It says that the descent of a person acknowledged must not be already established from another. Has anybody proved that Khorshed Alam is son of another person? None whatsoever. On the contrary, plaintiffs own case was that Khorshed Alam was of unknown parentage. That was the specific case in the plaint thought evidence was led to say that Khorshed Alam was son of one Baramoni, hut it was not established, whereas the second condition saying that the descent of a person acknowledged must not be already established from Brother (emphasis added). Thus the second condition is also fulfilled for rendering the acknowledgement valid. In Durrul Mukhtar it is stated thus:
(ii) If a person make an acknowledgement in favour of a youth whose parentage is unknown whether at his birth place or In the town where fee is, that the latter is his son and the acknowledgers and the acknowledged are such in age that the latter may be born of the former as a son, and the youth verifies it, he being capable of discretion (because otherwise his verification is not necessary as already stated) thus his descent is established, though the acknowledger be in sickness; and when the descent is so established, the youth will participate with the other heir". (CS.10 All 312).
Hedaya sums up the law upon the subject
"(Sura 334) Muslim Jurists have testified to this and the author of the Kifaya explains that such acknowledgement is sufficient because the burden of the obligation in respect of the child rests especially on the father, and the latter acknowledgement effects him personally and is thus accepted without any verification by the mother".
14. An author celebrated commentary on the Hedaya Fathual Qadir in explaining the rule quoted above as to the condition that the acknowledged child should be of unknown parentage, goes on to say that the condition has been imposed because otherwise the descent of the acknowledged child could not be established from the acknowledger since "descent after it is established is not susceptible of the annulment." In other words the acknowledged child should be of unknown parentage.
15. In the case of Md. Alladat Khan vs. Md. Ismail Khan 10 I. L. R. Allahabad, 289 the Court considere1 the following questions:
Mahmood, J. noticed the leading cases namely 3 Moore I.A. 295, 8 More J.A. 136, 11 More LA. 94 then answered the question as in the following manner:
But this view is not applicable in the case of children born of Zina and such children can never be legitimated or entitled to inherit from their father. In the present case the plaintiff failed to prove that the defendant is the son of another person and therefore he could not be acknowledged validly at son of Amir Ali. On the contrary, the plaintiff himself brought the suit for a prayer that the defendant is of unknown parentage other than Amir Ali. In that prayer plaintiff it invites the rule of acknowledgment of parentage in Muslim Law.
16. The defendant stated that he was born in the womb of Monowara Begum who was the accord wife of Amir Ali. The plaintiff contested it and stated that there had been no wife by name Monowara of Amir Ali. Straight, J. summed up:
If the defendant failed to prove the marriage of his mother that will not create an impediment to me acknowledgement itself and since the plaintiff did not take up the plea that the marriage between Amir Ali and Monowara could not have been possible it being within prohibitory degree or off spring of Zina. The force of the logic therefore upholds the contention of the defendant for the doctrine of acknowledgement to come into play. Mahmud, J. in his celebrated judgment in 10 Ali 289 (which was upheld by me Privy Council In the case of Habibur Rahman Chowdhury Vs Altaf Ali Chowdhury and others, 48 I.A. 114) pointedly answered the question: "I repeat that the rule is limited to case of uncertainty of legitimate descents and proceeds entirely upon an assumption of legitimacy and establishing such legitimacy by the force of such acknowledgement” page 537). The learned Judge summed up the fact of that case:
17. Such acknowledgement could be in-effective by proving (1) that the acknowledged son is an offspring of Zina, (2) that the marriage between the acknowledger and the mother of the child was impossible or did not exist at the time which would make the child legitimate. The plaintiff did not prove either of these two essentials which would vitiate the acknowledgement of Amir All that Khorshed A lam is his son.
18. In the case of Sadek Hussain Khan Vs. Hashim Ali Khan, 43 I.A page 212 Privy Council considered the oral evidence of 4 witnesses who supported the acknowledgement of Sultan Mirza by his father Zaigham-ud-Daula. Their Lordships scoffed at the criticism passed upon their evidence that the boy Sultan Mirza was only introduced to each of them once, and therefore then recollection is unreliable by observing "as it was to be expected that a father would naturally introduce a son to a friend as his son more than once" (Page 233), Their Lordships reemphasized the law “no statement made by one man 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 acknowledgement is substantive evidence that the per-son so acknowledged is the legitimate son of the person who makes the statements provided his legitimacy be possible." (emphasis, added)(page 234),
19. This proposition of law was reiterated in the case of Habibur Rahman Chowdhury vs. Altaf Ali Chowdhury, 48 LA. 114. It raises a presumption which may be taken advantage of by either wife-claimant or son-claimant. Being, however, a presumption of tact, and not juris et de jure, it; is, like every other presumption of fact, capable of being set aside by contrary proof. The Privy Council says m a formula as under:
(This principle was reiterated, in Mahabbat Ali Khan's case 56 LA. at page 207. Here is the key to be problem. Khorshed Alam has proved the acknowledgement and a written document Ext. H backed by enormous documentary evidence that Amir Ali acknowledged him as his son, the onus is on those who deny a marriage of his mother Monowara Begum to Amir Ali (to negative it in fact). The plaintiff failed miserably on this score as well. Then the case of Mohabbat Ali Khan versus Muhammad Ibrahim Khan 56 LA. 201 the Privy Council considered the question of acknowledgement by a father, their Lordships observed:
The Privy Council reiterated the principle lay down in the case of Habibur Rahman Chowdhury Vs Altaf Ali Chowdhury, 48 LA. 114. The dictum was reiterated with approval:
It would appear accordingly that it rests upon the respondent in this ease to establish that there was no marriage with Monowara. The plaintiff respondent did not discharge the onus and therefore acknowledgement by Amir Ali and his treatment of the defendant appellant Khorshed Alam as his son holds the field. The Privy Council in 561.A.201 considered the documents which had been produced and observed:
20. Precisely that is the position here in this case. Khorshed Ali was acknowledged at son and he was reared up and heated as such and to cap it all he was married to Nazleen, his Khalato sister (first cousin), daughter of plaintiff's mother's sister and upon her death her younger sister was married to him. What more is expected to show that Khorshed Alam was treated as legitimate son of Amir Ali. The crisis came in 1966 and now we shall deal with that chapter. The evidence is that plaintiff by now had become a major. He was born in 1945 in the womb or his mother Meher Shamsun Nahar who was married in 1939 Amir Ali. Be it noted that Zohura who reared up Khorshed Alam was married in 1935 and died in 1966. It appears that Amir Ali tiled a money suit being M.S. 33 of 1965 for realisation of rent of rk.900/-being the arrears of rent from 1962 to 1965. This suit was filed on 16.8.65 and it was filed against Khorshed Alam describing him as Khorshed Alam @ Shah Alam, (possa Putra of Amir Ali). The word (Possa) was written in bracket so one decree Ext.4. The deposition of Amir Ali is Ext.5 and he deposed on 26.4.66 just about two mouths after death of Zohura Begum. In his evidence he did not say a word that Khorshed Alam was his adopted son. Though in cross-examination he disputed the genuineness of the Hiba-bil-ewaz Ext.H. Khorshed Alam deposed as defendant and stated that he took lease of the entire building for the purpose; of running residential hotel and he stated that he lived in the Amir Manzil on the second floor with his father who lived on the first floor. He was cross-examined as to his place of birth, name of his mother and a suggestion that the plaintiff was not his father. Amir Ali himself died in April, 1967. High Court Division and the courts below gave much emphasis on this fact that the appellant was shown as "possa Putra" in the cause title and the appellant in cross-examination could not give the name of his mother and his place of birth. Amir Ali himself deposed, he did not say a word in his evidence as to the acknowledgement of sonship of Khorshed Alam this way or the other. Defendant himself explained that at this time at the investigation of the plaintiff and his mother a ground was being prepared for disowning him as the eldest son of Amir Ali in view of prolonged ailment of Amir Ali and having an eye on the question of Mutwalliship after his death. Perusal of the documentary evidence and oral evidence adduced by the plaintiff snow that towards the end of 1965 the scheme was made for dislodging Khorshed Alam from she family and the rent suit for recovery of amount of Rs. 900/- was merely a device for letting In some evidence for the purpose of discarding legitimacy and acknowledgement of Khorshed Alam. As the Privy Council mentioned in 56 I A. at page 209 that such evidence ought not to have been allowed by the trial court and we axe also of the same opinion that in a Money Suit the question as to the paternity of else defendant ought not to have been allowed by the trial court. This evidence is therefore discarded. To fall back upon the dictum of the Privy Council. "Once he establishes an acknowledge-meet the onus is on those who deny a marriage to negative it in fact". That acknowledgement has been well proved in this case by oral evidence and documentary evidence that since his childhood Amir All brought him up, gave him education and was a little boy 21/2 years old when his mother Monowara Begum died (1935). Amir Ali married Zohura in 1935 and this Zohura reared him up since 1935 and she died on 6.2.1966. Be it noted that Mst. Shamsun Nahar, the 4th wife of Amir Ali was married to him in 1937. Between 1935 and 1939 Amir Ali had only one wife namely Zohura. Meher Shamsun Nahar's sister gave her daughter Nazleen in marriage to Khorshed Alam in 1953. The plaintiff was born in 1945 and an Ekrarnama for Heba-bil ewaz is dated 19.3.53 which has been reproduced in part already: Now a significant part of the Hiba-bil-ewaz may be considered:
আমার নিজ মোকাম রাজশাহী শহরে রানী বাজারে রানপুর বেয়ালিয়া মৌজায় আমার স্বকৃত আমির মঞ্জিল নামীয় ত্রিতল অট্রালিকা আমার ১মা স্ত্রী মোছাম্মৎ জহুরা খাতুন ও জ্যেষ্ঠ পুত্র খোরশেদ আলম ওরফে শাহ আলম এবং নব পুত্র বধূ মোসাম্মৎ নাজনি বেগম এই ৩ জনকে তুল্যাংশে দান করিলাম। এবং উক্ত স্ত্রী জহুরা খাতুন অভাব হইলে তাহার যাবতীয় স্বর্তে আমার উক্ত জ্যেষ্ঠ পুত্র বধু মাতা নাজলি বেগমের উপর তুল্যাংশে বর্তিবে। এবং অবশিষ্ট উক্ত মৌজায় পুকুর পাড়ের স্থিত আমার স্বকৃত ত্রিতল অট্রালিকা আমার ২য় স্ত্রী বেগম শামছুন্নেহার এবং তাহার গর্ভজাত ২ পুত্র ও ৪ কন্যা এবং ভবিষ্যতে আরও যদি খোদা এনায়েত করেন তাহা সকলে উক্ত ত্রিতল বাড়ির স্বত্ত্বাধীকারী ও কারিনী হইবেক। এবং আমার বাবা মরহুম ছালামত আলী সাহেব কৃত ওয়াকফ্ সম্পত্তির যাহা বতর্মান আমি নিজে মতোল্লী আছি। তাহা ও আমার অবর্তমানে আমার ২য় স্ত্রী বেগম শামছুন্নেহার (অস্পষ্ট) এর গর্ভজাত পুত্র গনের মধ্যেই যে বড় (অস্পষ্ট) তাহাকেই আমার স্থলে মতোল্লী মনোনীত করিলাম। আমার উক্ত স্টেট এর নিজস্ব যে সকল স্থাবর অস্থাবর সম্পত্তি আমার দখলে আছে তৎসমুদয় আমার জীবন কালতক সর্ব প্রকার অবস্থান্তর করনের যাবতীয় যুক্ত আমার দখলেই আমার অভাব হইলে উল্লেখিত ভাবে সমস্ত স্থাবর অস্থাবর সম্পত্তি উল্লিখিত নির্দেশ অনুসারেই আমার ঐ সকল ওয়ারিশগন স্বত্ত্বাধিকারী হইয়া দখল ভোগ করিতে থাকিবে। উল্লিখিত মর্মে ও স্বত্বে রাজশাহী গিয়া এক মাসের মধ্যেই উক্ত হেবাবিল যেন এওয়াজ নামা দলিল সম্পাদন ও রেজিষ্ট্রী করিব।
The evidence that was led shows clearly that this Hiba-bil-ewaz was acted upon and Zohra was described as his first wife because at that time she was the first wife and Khorshed Alam was mentioned as the eldest son and his newly wedded wife Nazleen Begum was given a proportionate share in the three stoned house namely “Amir Manzil". Then he says that another three stoned house on the bank of the tank will devolve upon the second wife Shamsun Nahar and her two sons and four daughters. As for the Wakf Estate he stated that his eldest son through his second wife will be the Mutwalli. Until the documents are executed and in the event of his stand he stated:
খোদা না করেন আমি ইতিমধ্যে যদি অভাব হই তাহা হইলে আমার জ্যেষ্ঠ পুত্র খোরশেদ আলম ওরফে শাহ আলম ও আমার ২য় স্ত্রীর গর্ভজাত পুত্র আলী নুমান সাবালক না হওয়া তক অস্থায়ী ভাবে আমার যাহা সদায়কৃত ওয়াকফ্ ষ্টেট (অস্পষ্ট) থাকিবে এবং উক্ত ২য় স্ত্রীর গর্ভজাত পুত্র সাবালক হওয়া মাত্র তাহার অনুকুলে উক্ত ওয়াকফ্ সম্পত্তির যাবতীয় স্বার্থ ষ্টেট ত্যাগ করিবে। এতৎ মর্মেই স্থাবর অস্থাবর সম্পত্তিতে নিজ খোশ মেজাজে অন্যের বিনা প্রয়োজনের এই একরার নামা পত্র সম্পাদন করিয়া দিলাম। ইতি সন, ১৩৫৯/৫ই, চৈত্র ইং ১৯-৩-৫৩।
21. That clinches the whole issue. Khorshed Alam was not only mentioned as his eldest son but he was given the status of a defacto guardian of the entire family in the business of Amir Ali till his step brother born through his second wife comes of age. What more is expected to how that the acknowledgement of sonship of Khorshed Alam admit of no doubt.
22. The next question comes that where there, is a valid acknowledgement whether such acknowledgement could be repudiated. In the case of Ashrufood Dowlah vs. Hyder Hossain Khan, 11 MLA.94 there had been no continuation of treatment upto the time of the father's death. On the contrary there has been absolute denial of paternity by the father. There was no proof of any acknowledgement but there was proof of treatment strong enough to prove legitimacy in the ordinary case. In these circumstances their Lordships held: "that the acknowledgement was not proved satisfactorily for sonship and further held that the onus of proof of his illegitimacy was upon the plaintiff in a properly constituted suit. It was further held that a denial of a son either of a Nikabee (regular) or Motaher (irregular) marriage after acknowledgement is untenable though supported by a disclaimer and repudiation by the father. In that case the plaintiff appellant denied the marriage and the disclaimer of acknowledgement by the Nowab of the respondent as his son and relied upon deed of disclaimer and the repudiation of the respondent executed by the Nowab in his life time denying that the respondent was his son was held to be untenable, Their Lordships however found that the defendant failed to establish acknowledgement. In the case of Mohammad Baikder Hossian Kkan vs. Shurfoon Nessa Begum, 14, 136 the question was whether the appellant was the son of Nowab of Karnatak by his Nika wife Amin Shaheba. Tb& respondent challenged the marriage who according to them a slave girl was observed:
In that case, it was held, there was absence of circumstances sufficient to find or justify such a presumption or much an inference.
23. Mr. Khondker Mahbubuddin Ahmed appearing for the respondent argued strenuously on the Ext. 8 Ekrarnama and questioned as to why Amir Ali nominated the eldest son of his second wife to be the Mutwalli as far beck in 1953. To quote Lord Bowen, Devil knows not what is in the mind of a man. It is not permissible in law lo speculate. When the person himself has spelled out in writing as to the disposition of his properties and as to the happening after his death that till the son of the second wife comes of age. Khorshed Alam whom he described as his eldest son was to manage the affairs. In this background he mentioned that after his death the eldest son of second wife will be the Mutwalli is left in the field of speculation and though Amir Ali lived for about 14 years thereafter he never clarified the position. It was only in 1967 just a month before his death that he declared: I nominate my eldest son Amir Sultan Ali Hyder as the next Mutwalli after me and he is educated religious minded and fit to be Mutwalli of the suit Wakf Estate
24. That one Khorshed Alam alias Shah Alam is not toy son and I reared him and never acknowledged him as my son and he it separate from (Ext-1/d dated 63.67) me. By that time Zohura was dead and interesting enough by this time Khorshed Alam was described as "my adopted son, is very dishonest, mischievous and for his nefarious activities, I drove him out from my family and I have no connection with him". (Ext. 1 dated 14.3.66). Towards the end of 1966 and beginning of 1967 various representations were made denouncing Khorshed Alam. For instance Ext. 1 (d) dated 6.3.67 where Khorshed Alam was disowned as son and further it is stated that he was never acknowledged as his son. These are products of a grand design which will be evident when a petition filed by Md. Solaiman is considered. This Solaiman submitted an objection dated 23.8.77 praying not to appoint Khorshed Alam alias Shah Alam as he is illegitimate son of unknown person and adopted son of late Md. Amir Ali (vide Ext. l/e dated 238,77). By that time the battle was over Mutwalliship. Solaiman described himself as son of late Sk. Salamat Hossain in paragraph 1 he says that he is the only son of Salamat Hossain Khan who created Salamat Hossain Wakf estate and he stated that his cousin brother late Md Amir Ali was the ex Mutwalli of Salamat Ali Wakf Estate after his father And now that Amir Ali died on 5. 4.67, he joined with the plaintiff supporting his candidature for Mutwalliship as again Khorshed Alam. He denounced Khorshed Alam on the same pattern as was done by plaintiff himself and prayed for the appointment of the plaintiff as Mutwalli. Why this unusual zeal on the part of the person named who described aim self as only son of first wakf yet fee was not appointed Mutwalli. Answer in not far to seek. Amir himself has given the answer in his life till and it will be useful to consider Ext S(1) petition by Amir Ali dated 12.11.49. in respect Misc. Case No, 6 of 1944 before the Ws Commissioner who initiated the proceeds on various allegations by Solaiman Mia Amir Ali posed the question "who is the Solaiman Mia?" (at page 118 of volume 11 the Paper Book). He mentioned "Solaiman Mia is not the be gotten son of the Waqif Salamat Mia in his advanced age Nika married one Wahidan Bewa who was born and brought up at Patna. This Solaiman wanted be Mutwalli and he initiated series of providing against Amir Ali and Amir Ali state "It is very recently the Mutwalli was attack and the Mutwalli has been obliged to file petition under section 107 Cr.P.C. for protection before the S.D.O. on 2.9.49. Such is man Solaiman Mia". Amir Ali himself the question and gave answer to it and less said the better, because Solaiman never appointed as Mutwalli though he now taken up the cudgel on behalf the plaintiff to dislodge Khorshed Alam who had been acknowledged as elder son of Amir Ali by Amir Ali himself throughout his life. These subsequent davits in and around 1966-67 expose design winch is now paved for dislodging Khorshed Alam then proving any disclaimer or repudiation. As the Privy Council in 431 A.212 considered such documents a no avail and the acknowledgement having proved such documents composed many subsequent to the dates of acknowledgement deposed to by the four witnesses mentioned and concluded that the evidence of the witnesses is not rebutted or discredited “by these documents"' (at page 234)
Issue No. 2 was framed as under:
While the trial court initially started by placing the onus on the plaintiff answered the question that the defendant was never a legitimate son of late Amir Ali Mia but he was a foster son of him end of unknown parentage and Amir Ali Mia "intended to establish him in the society as his son and simply acknowledged him " In pasting placed the onus on the defendant to prove that Monowara Khatun was the mother of the defendant no. 1 and she was married to Amir Ali Mia.
25. The lower appellate Court approached the question from another angle namely, that the plaintiff's case was that defendant Khorshed Alam is the son of one Baramoni, a reputed prostitute of Natore and that he was adopted by Jahura Khatun, the second wife of Amir Ali Mid who was a tribal lady from Siliguri. It was noticed that this onus was not discharged by the plaintiff and that Baramoni who was still alive was not adduced as a witness by the plaintiff. The appellate Court suggests "that Baramoni as mother of the defendant could not come forward to assert her mother-hood of the defendant at this stage, which may doom the future of the defendant. The defendant also did not produce her in support of his case. It is therefore well proved that the defendant is not a legitimate son of late Amir Ali" (page 494 of Paper book). The suggestion it unwarranted and the conclusion is arbitrary being contrary to all presumptions of law built up over the last 150 years. The appellate court below look the view from Ext. G the Ekrarnama that "why then Amir Ali wanted to disprove Khorshed Alam from Mutwalliship back as 1951 which was due to him if he is a real son of Amir Ali Mia."
26. Before proceeding further both trial court and the lower appellate court erred in law and failed to take notice of the presumption in the matter of personal status which will be considered presently.
27. The High Court Division further noticed that Ext. 5(a) and 6, depositions of the defendant in case No. 5/66 show that the defendant contradicted himself as to the place of his birth and origin, Not withstanding he challenge that was given by the learned Advocate appearing for the defendant appellant as to the admissibility of Ext. 5 and 6 which have been treated as substantive evidence, the High Court Division took the view that those previous statement are admissible for the purpose of the contradiction. With respect, this conclusion is not founded in law. Ext 5 and 6 are inadmissible evidence and they cannot constitute as admission within section 19 of the Evidence Act. The High Court Division then dealt with Ext. G and concluded that because Amir Ali wanted to deprive from the Mutwalliship as far back as in 1953 question of defendant No. 1’s relationship cropped up in the mind of the relations of Nazlee Begum, wife of defendant No. 1 and this document Ext G was executed as safe-guard for the defendant and his wife. This finding is based on conjecture which was recorded overlooking the provision of section 91 and 92 of the Evidence Act. The High Court Davison also viewed as the appellate Court below did that the defendant could not prove the marriage of Monowara Begum with Amir Ali Mia and concluded as such the alleged marriage of Amir Ali Mia with Monowara Begum has been disproved." This finding again has been recorded contrary to the well-fettled principle of law and of Evidence Act.
That the marriage, between Monowara Begum and Amir Ali Mia was pleaded, no doubt, by the defendant, but the onus is never upon the defendant to prove the factum of marriage as it has been already mentioned Mahmood J. after noticing the Privy Council cases namely, 3 MIA 295, 8 MIA 836 and 11 MIA 94 observed :
But the well-settled proposition of acknowledgement of sonship is attracted, unless it could be shown that the child is born out of Zinah or of adultery and that onus is heavily upon she person who alleges. The plaintiff in this case stated as a positive case that defendant is a son of one. Baramoni but gave up the case. Then the Court of appeal below shifted the onus on Khorshed Alam to prove the marriage and it was erroneous allocation of onus because long line of cases do not place any onus on the evidence in a case of clear acknowledgement of parentage. Once acknowledgement is established the Privy Council says in 561. A at page 201:
The onus was clearly upon the plaintiff to establish that there was no marriage. The plaintiff failed both on the count that defendant is the son of one Baramoni and also on the count that there was no marriage of Amir Ali with Monowara Begum. All the findings which have been arrived at by the court below fellow from misconception of law which have been laid down in the decision already mentioned since nineteenth century. In Srimati Bibabati Devi Vs. Kumar Ramendra Narayan Roy, 5 C. W. N. 98 the Privy Council considered the nature of special circumstances which would allow a departure from the rule of the concurrent findings of fact. It was held:
28. All the Courts below in the facts and circumstances of the case had misplaced the onus on the defendant for proving the marriage of Monowara Begum with Amir Ali Mia where as the settled principle of law is that the person who deny it will have to be established. 10 other words, it was for the plaintiff to prove Chat there was no marriage with Monowara Begum as alleged. As such, the concurrent finding of fact are no findings 10 the eye of law.
29. Secondly, toe Muslim dictum of acknowledgement was not appreciated by the Courts below and unfortunately the High Court Division also overlooked the settled proposition that is laid down in 56 I. A. page 201 that the marriage will be held proved and his legitimacy established unless the marriage is disproved. The High Court Division unfortunately mentioned that the defendant has not been able to prove the alleged marriage with Minara Begum and concluded as such 'alleged marriage of Amir Ali with Monowara bas been disproved." Evidence Act deals with the concept, "proved or not proved or disproved". Had the onus been on the defendant the High Court Division could have said that the marriage was not proved, but the Privy Council settled that so onus is upon the plaintiff to disprove the marriage and if he establishes it, marriages is disproved These legal concepts are to be applied in the facts and circumstances of the cases, and any derailment by way of allocation of onus bound to cause a miscarriage of justice and the findings of fact arrived at are in contravention of the presumptions of law and therefore such finding of facts cannot stand as noticed by the Privy Council in 51 C.W.N. Much emphasis was given by the plaintiff on Ext. G to show that Amir Ali Mia as far back as 1953 denied Mutwalliship to Khorshed Alam and nominated that after his death the eldest son by his other wife should be the Mutwalli. Strenuous arguments were advanced by Mr. Ahmed that this shows that the Mutwailli Amir Ali did not intend Khorshed Alam to be the Mutwalli. This document read as a whole belies the contention; on the other hand, Khorshed Alam was appointed as de facto guardian during the minority of the plaintiff. True that Amir Ali intended that Mutwalliship should pass on the issue of his other wife but wakf nama has ant reserved such power to him which says:
Further he said that-
That was she instrument of the Wakf. It has already been noticed that Solaiman Khan was not appointed, on the other hand, the wakf appointed his brother's son Shah Alam as Mutwalli. No power was reserved to the Mutwalli to vary the terms of the wakf deed for choosing the line of Mutwalliship. It is admitted; that Solaiman is now dead, and be has no male issue. Now condition is —
Now that Solaiman had no issue. Only sons of Amir Ali can claim Mutwalliship. The Wakf mentioned, three conditions —
It irrelevant for the purpose that the prayer No. 2 of tae plaint was to the following effect:
Since the prayer No.1 that the defendant No.1 is the child of .some unknown parentage other than that of Md. Amir Ali Mia cannot be granted in view of the proposition of law mentioned above, the second prayer does not come for consideration in as much as the conditions for appointment of Mutwalli are mentioned in the Wakf deed itself and it is forth? statutory functionary namely, the Administrator of Wakf to consider whether these conditions have been fulfilled by any individual It is enough to notice that the assessment is to be made by the Administrator of Wakf Estate in Judicial manner (29 D.L.R. page;) Such jurisdiction exclusively conferred upon him by the law but his decision is nit immune from challenge on the ground of malafide or arbitrariness.
30. To sum up the conclusions:
2. Acknowledgement at Amir Ali Mia raises a presumption in favour of the defendant as to his sonship.
3. Written acknowledgement was nude in 1953 and that was never revalidated nor in law such acknowledgement could be invalidated by repudiation or disclaimer (vide Privy Council in 11 M.I.A 94.)
4. Having proved the acknowledgment of Amir Ali there is no onus on the defendant to prove marriage of his mother Monowara Begum with Amir Ali. The onus is on him who denies such marriage, namely, the plaintiff and this onus was also not discharged. Marriage of Monowara Begum is thus neither "disproved" nor "proved" and in such circumstances the dictum of Mahmood, J in 30 Allahabad comes info play.
5. All evidence that has been adduced by the plaintiff challenging the status of defendant is around 1966 and 1967 and it may be noted that Amir Ali died in April, 1967,
6. Social relationship with the family of Amir Ali, and Khorshed Alam and that of the plaintiff raises strong circumstances in favour of the presumption of acknowledgement inasmuch a Khorshed Alam married to first cousins one after another of the plaintiff. The affidavit of plaintiff's mother's mother (nani) though of 1967 throw light although how controversy arose over the Mutwalliship only for which the plaintiff went to length of denying the acknowledgement of sonship by Amir Ali Mia.
7. In the Wakf deed no power was reserved to Mutwalli for diverting the line of Mutwalliship the only condition was that the Mutwalli should be যিনি বয়োজেষ্ঠ সর্বাপো ধার্মিক ও সৎচরিত্রবান হইবেন।
All these qualities are to be evaluated by the statutory functionary e.g. Wakf Administrator while choosing the Mutwalli. It is for him to resolve the problem of solution if any of these requisite qualifications are lacking.
8. Lastly, the present suit was misconceived and on plaintiff's own showing such declaration namely, that Khorshed is of unknown-parentage cannot be made as that in contrary to law nor the second prayer can be allowed which calls for objective determination of fact by the statutory functionary and as such the plaintiff has to be non-suited.
In the result, therefore this appeal is allowed and all the judgments and orders of the Court below are hereby set aside end the suit is dismissed. No costs.
Shahabuddin Ahmed J.
I have had the opportunity to read and consider the judgment of my learned brother, B. H. Chowdhury, J. I very much regret that I am unable to agree with him on the views expressed and the decision arrived at in his Judgment on the real question that calls for determination in this appeal. The real question is whether the presumption raised by late Amir Ali's 'acknowledgement' that the appellant in his eldest son has been rebutted or set aside by contrary proof adduced by the respondent, an admitted ion of late Amir Ali. Respondent filed the suit for this particular purpose in pursuance of this Court's earlier judgment in Civil Appeal No. 27 of 1975, reported in 29 DLR SC 295. Both the trial Court and the lower Appellate Court. On a concurrent finding of facts, decreed the suit holding that defendant-appellant ii not a legitimate son of Amir Ali, and the learned Single Judge of the High Court Division, on a revisions application under section 115 if the Cads of Civil Procedure, did not find any ground to interfere with the concurrent finding of fact. Now it is to be seen whether the learned Single Judge rightly refuted to interfere with the concurrent decision of the Courts below.
32. At the out set, I would refer to the judgment of this Court in Civil Appeal No, 27 of 1975 in order to make it clear that the principle of law governing this suit was already determined and finally settled by this Court in that appeal, and thereafter, the party interested was advised to file a suit to rebut by contrary proof the presumption raised in favour of the defendant-appellant by late Amir All's acknowledgement that the defendant was his son. The said appeal also related to the same dispute that arose between the appellant and the respondent on the Mutwalliship of the "Salamat Hossain Waqf Estate". On Amir Ali death both the appellant, Khorshed Alam, and the respondent, Amir Sultan Ali, claimed the Mutwalliship as the eldest son of Amir Ali'. The Commissioner of Waqfs, later on designated at Administrator of Waqfs, provisionally accepted the claim of the respondent Amir Sultan Ali and appointed him the Mutwalli in terms of the Waqf-deed treating him as the eldest son of Amir Ali, the late Mutwalli, and expressed the view that the question as to who is the eldest son of the late Mutwalli should be decided in a properly constituted suit and till that decision the respondent would work as Mutwalli. This decision, as we have seen, was set aside by the High Court Division in a previous Revisional Application and its judgment was confirmed by this Court in Civil Appeal No. 27 of 1975 and it was held that in view of Amir Ali's acknowledgement" the appellant should be prima-facie treated as Amir All's son and he would hold the office of Mutwalli till the presumption of legitimacy in his favour is rebutted in a properly constituted suit. In that judgment this Court observed:
33. This judgment was announced on 1 July 1977 and within a short time respondent, Amir Sultan Ali, filed the suit—O.C. Suit No. 457 of 1977 seeking declarations that defendant (Khorshed Alam) is the son of unknown parentage and not the legitimate son of late Amir Ali and that he (plaintiff) is the eldest son of Amir Ali, and he being pious and of good character as such being eligible for the office of Mutwalli, is the fit person to be appointed the Mutwalli.
34. Case of the plaintiff is that he is the eldest son of Amir Ali through his third wife Meher Shamsunnahar and that the defendant is not the son of Amir Ali but is his foster son only. The plaintiff alleged that his father Amir Ali, who was a Member of the Bengal Legislative Assembly for about 10 years, had only three wives, Sokhina Khatun of Patna, Zohora Khatun. A tribal lady brought from Darjeeling and converted to Islam and Meher Shamsunnahar of Bogra, and that Amir Ali had no other wife than these three ladies. Sakhina Khatun, the first wife, had 8 children all of whom died in their infancy and she died some time in 1940. Amir Ali had a fruit business at Natore and in connection with that he has to Darjeeling and from there he brought a tribal lady who embraced Islam, took the name 'Zohora Khatun' and was married to Amir Ali. She was barren and childless and decided to foster a son to look after her in old age. One Baramoni, a professional dancer-cum-prostitute of Natore had an infant son aged about 11/2 years; from he: Zohura Khaton took the infant and reared him with the consent of Amir Ali waqf also extended to the child his love, affection and care. It is this boy who is the defendant, Khorshed Alam; he was given education by Amir Ali as he were his own son. Subsequently, at the time of Khorshed Alam marriage, when his status and position in society were questioned, Amir Ali executed an Ekrarnama in favour of one Hafizuddin, father of Nazli Begum, Khorshed Alam's bride, admitting him as "his eldest son" and promised to make a gift of one of his houses in favour of Khorshed Alam, Zohora Khatun and Nazli Begum. In. the same document, Amir Ali made it clear that his son, (the plaintiff) through his third wife, Shamsun Nahar, would succeed him in the office of 'Mutwalli', in terms of the Waqf deed which provides that the Mutwalli’s eldest son would be the next Mutwalli" Amir Ali at a later image recalled the "acknowledgement" and described the defendant in different documents as hit ''foster son". About a year before Ms death, Amir Ali made an application to the Commissaries of Waqfs stating that the plaintiff being his 'eldest son' would be the next Mutwalli after him, and explained that the defendant was Dot his real son but was foster son no eligible for this office.
35. Defendant Khorshed Alam contested the suit by filing a written statement denying the allegation that he was the foster son of Amir Ali and his wife Zohora Khatun and claimed that he is Amir All's real as well as the eldest son. He contended that Amir Ali had four wives, the second of whom was one Monowara Begum of Park Circus, Calcutta and was married to Amir Ali in 1929 and from this wedlock he was born in 1933 and that two years thereafter his mother Monowara Begum died. The plaintiff, born of Meher Shamsunnahar, the 4th wife of Amir Ali, according to him, is not the eldest son of his father. Defendant further contended that Amir Ali acknowledged him as his ion during his life time in a number of document and also told many persons, on different occasions that he was bit eldest son He contends further that Amir Ali, at the fag end of his life, became physically and mentally weak and fell under the influence of first wife Shamsunnahar and that at her direction, Amir Ali repudiated the acknowledgements and filed an application to the Waqf Commissioner requesting him to accept the plaintiff as his eldest son for the office of the Mutwalli. This subsequent repudiation of the acknowledgement, he contended, got no legal effect upon the acknowledgement of legitimacy through his father's life.
36. On these pleadings the trial Court approached the case with the following observation:
Plaintiff examined 16 witnesses including himself and produced a number of documents. He deposed that the defendant was not and could not have been son, far less a legitimate son, of his father Amir Ali in that his father had only three wives, Sakhina Khatun, Zohora Khatun and Meher Shamsunnahar, but the defendant was not admittedly born of any of these three wives. He contended that the defendant if fostered and reared up as a son by Zahora Khatun who was admittedly barren and that Zohora Khatun had taken him from his mother Baramoni of Natore when he was about 11/2 years old. Defendant, on the other hand, examined 10 witnesses including himself to prove that he was not a foster son of Zohora Khatun but he was born of Monowara Begum, one of the wives of Amir Ali, and that Amir Ali had in fact four wives. Besides oral evidence he produced a great number of documents all of which except one relate to the acknowledgment of Amir Ali which has already been accepted by the trial Court as prima-face evidence in favour of the defendant's legitimacy. On consideration of the evidence, oral and documentary, adduced by both the parties, the trial Court came to a clear finding that Amir Ali had only three wives, Sakhina Khatun, Zohora Khatun and Meher Shamsunnahar, that he had no wife named Monowara Begum nor any Monowara Begum was ever in existence, but that Monowara Begum, as claimed to be his mother for the first time in his Written Statement, is a fictitious person, and that he not being the offspring of Amir Ali through any of his wives is not a legitimate son of Amir Ali and, on this finding, decreed the suit. On appeal, the learned Additional District Judge also arrived at his independent finding that Amir Ali had only three wives that he had no wife named Monowara Begum whose very existence was not established, that Begum was invented as a wife of Amir Ali for the first time in the written statement of the defendant and that he, not having been born of any of the married wives of Amir Ali, is sot a legitimate son of Amir Ali. On this finding, the learned Additional District Judge dismissed the appeal and maintained she decree of the trial Court.
37. This decree, based as it is, on concurrent finding of the two Courts below was challenged by a revisional application being Civil Revision No. 263 of 1981. Before the learned Single Judge who heard the matter only two grounds were urged by the appellant namely, (i) the courts below treated certain documents, such as Exts. 5 (a) and 6, which are his depositions in a previous case, as substantive evidence in this case and that these courts did not consider all the evidence particularly documentary evidence produced by the defendant, and as such, the concurrent finding was not sustainable in law. The learned Single Judges referred to the evidence on record and found no substance in either of the grounds nor did be find any illegality or material irregularity which called for interference in revision with the finding of facts, pare and simple. I have considered Exts. 5 (a) and 6 to see if they were used as substantive evidence in the suit. These documents are depositions of the defendant (P.W.1) in two previous suits M.S. No. 5 of 1966 and O.C. Suit No. 381 of 1966 field against him by lace Amir Ali respectively for recovery of rent and ejectment. In these suits Amir Ali had shown him as his 'faster son’. Defendant in his depositions stated, among other things, that he did not know name and whereabouts of his mother or whether she was dead or alive. But in this suit when be claimed that Monowara Begum was his mother and that she hailed from Calcutta, he was confronted with his depositions, Ext 5 and 6. This right the opponent got under section 143 of the Evidence Act, to test the veracity of his testimony, particularly when he, for the first time, set up the claim that Monowara Begum was his mother. These depositions were not used as any substantive evidence in this suit. As to the second ground. I have examined his documents and found that all the relevant documents were considered by the courts below.
38. In this appeal by special leave the appellant did not take the grounds that he had taken before the High Court Division, but raised again the question of legitimacy by the acknowledgment which was already accepted as a prima facie proof of his claim to son-ship by the courts below in pursuance of the Court's previous decision. The sole duty of these courts was therefore to see if the prima facie proof vas nullified and rebutted by contrary facts. Leave granted was to see whether the appellant's "claim to son-ship of Amir Ali is established by the acknowledgment of Amir Ali claiming the former to be his son. The point for consideration is whether the learned Judge of the High Court has correct decided the principle of Acknowledgement under Muslim Law". This question is superfluous, for in the previous decision of this Court the principle of acknowledgement under Mohammadan Law was explained, presumption of legitimacy by acknowledgement was taken in favour of the appellant and it was the respondent on whom the onus was laid to rebut the presumptuous by contrary proof the question thus raised in the suit was whether the defendant was born of any valid marriage between Amir Ali and any woman claimed by him to be his mother. This was purely a question of fact which fell for determination by the Court below. These Courts were not called upon to re-state the principle of law as to acknowledgement and it effect. The appellant, it appears, hat raised the question of acknowledgement again to create a smoke-screen in an attempt to escape from the adverse finding of fact which he otherwise could not challenge.
39. The law applicable to the question is well settled, as already indicated by civil Court in the judgment in Civil Appeal No 27 of 1975. It is that when the paternity of a pertains uncertain and another person acknowledges him as his son, then this acknowledgement is a substantive evidence of the fact that the person acknowledged is his legitimate son; gush acknowledgement raise a presumption that the person acknowledged Is born of a valid union between the acknowledger and the mother of the person acknowledged. But being a presumption of fact and not of juris at jure, it is like every other presumption of fact capable of being set aside by contrary proof. Onus of such a proof is upon the person who challenges the acknowledgement. His onus may be discharged by bringing evidence that the person ac knowledge is not the legitimate son of the acknowledger because he was not the offspring of any valid marriage between the acknowledger and mother of the acknowledged or because it is impossible for the acknowledger to beget the acknowledge or the marriage between him and the mother of the acknowledged is prohibited by law. In elaborating this principle it is found that to become a legitimate son on the strength of an acknowledgement the following ingredients are necessary, namely the acknowledge was born of the loin of the acknowledger, that is, the former is the descent from the latter; the age difference between them is such that the acknowledger must have attained puberty at the time be allegedly begot the son; the mother of the acknowledge war legally married wife of tin acknowledger at the relevant time; the marriage between these two is not prohibited by law, teat is, the wife is not within the prohibited decree in relationship. Any offspring other than from such valid union is illegitimate befog the offspring the zina—that is, adultery, incest or fornication. In a nutshell, a valid marriage between the parents is the essential precondition for legitimacy. If such marriage is disproved, acknowledger’s case falls straightaway, and no amount of acknowledgement shall make the acknowledge a legitimate son.
40. In Md. Allahdat Khan Vs. Md. Ismail Khan, 10 Ail. 289 Straight, J. elaborating "acknowledgement" observed:
Mahmood J. in the same case, observed;
Facts of the case related to a dispute between the appellant Allahadat Khan and his stepbrother Ismail Khan over inheritance from their father Golam Ghous Khan. Ismail Khan was admittedly a son of Golam Ghous Khan through his first wife, and Allahadat Khan claimed that he was a ton, of Golam Ghous Khan through his another wife named Moti Begum. It was contended by Ismail Khan that Moti Begum was married to Golam Ghous Khan long after the birth of Allahadat Khan and as such the latter was born as an illegitimate son of his father. From the evidence adduced the date of Moti Begum's marriage could not be ascertained with certainty. But Golam Ghous Khan had acknowledged Allahadat Khan as his son during his life time. In these circumstances it was held that presumption as to legitimacy by acknowledgement remained unrebutted and consequently Allahadat was held to be a legitimate son of Golam Ghous Khan.
41. In Sadek Hossain Khan v. Hashim Ali Khan, AIR 1916 PC. 27=43 I.A. the legitimacy of one Sultan Mirza came up for consideration. He claimed to be a son of Nowab Zaigham-ud-Daula having been born of Zohora Kainam, whom, he claimed, the Nowab had married in Mota form. Zohora Kainam was an Abyssinian slave girl and was brought home by the Nowab's father from Mecca, but the sons of the Nowab through his admitted wives averred that Zohora Kainam was not legally married to their father, and as such, Sultan Mirza was not a legitimate son as claimed. It was found from evidence that the Nawab, during his life time, treated Sultan Mirza, as his son in the manner which suggested his acknowledgement of Sultan Mirza as a legitimate son. But it was found that there was no lawful marriage between the Nawab and Zohora Kainam but that she was a mere mistress of the Nawab, and as such, Sultan Mirza was not his legitimate son. In these circumstances it was observed by their Lordships of the Privy Council:
42. In Habibur Rahman Chowdhury v. Altaf Ali Chowdhury, AIR 1922 PC 159, their Lordships considered a similar question as to legitimacy viz-a-viz legitimation under the Mohammadan Law and observed that legitimacy" is a status which results from certain fasts, whereas "legitimation" is a procedure which creates a status which did not exist before and that under Mohammadan Law there is no legitimate because, under Mohammadan Law, ''& person to be legitimate son of person must be the, offspring of a marriage between his mother and his alleged father and that any other offspring is the offspring of Zina, that is, illicit connection and cannot be legitimate". In that case the appellant claimed to be a legitimate son of Abdus Sobhan, Nawab of Bogra, stating that he was born of Mozelle Cohen, a Jewish lady, who he claimed was a legally married wife of the Nawab. Nowab’s grandson through the daughter of his first wife and others disputed the claim contending that Mozelle Cohen was never married to the Nawab. It was found from evidence that the Nawab lived and co-habited with her for a long time but she was never married to him, and that she was Nawab's concubine only. It was held that though the Nawab had acknowledged the appellant as his son during his life time no marriage between these parents having been provided, the appellant was not a legitimate son of the Nawab:
43. The crux of the instant case is whether the appellant was born of any legally married wife of Amir Ali and if the answer is in the negative his claim to sonship shall fail straightaway and the acknowledgement of Amir Ali will be of no avail and the presumption as to legitimacy raised by the acknowledgement shall stand rebutted. It is only to rebut this presumption that the suit has been brought, and weather the appellant is the offspring of any lawful union between Amir All and Monowara Begum whom the appellant claims to be his mother is purely a question of fact. By a concurrent finding the trial Court and the lower Appellate Court held that there was no woman like Monowara Begum but she was invented for the purpose of the suit and that Amir Ali had no wife named Monowara Begum. Now it is to be seen whether a Court exercising revisional Jurisdiction under section 115 C.P.C, can interfere with this finding. A finding ,of fact is immune from revision unless is shown that the finding is based on gross misreading of evidence or on non-consideration of material evidence or it has been founded on misconception or misapplication of law or on misinterpretation of any material document or otherwise it Is perverse being contrary to evidence on record. To see whether this finding suffers from any such weakness, I would go straight to the evidence both oral and documentary adduced by both the parties.
44. Oral evidence led by the plaintiff aimed at substantiating his averments that Amir Ali had only three wives and had no wife named Monowara Begum, that the defendant was the foster son of Zohora Khatun and Amir Ali and that the defendant had been taken for that purpose from his mother—Baramoni of Natore when he was a child of 11/2 years old. Defendant's oral evidence was directed towards falsifying these averments and to establish his claim that Amir Ali had another wife, besides the admitted three, of whom he was born. Plaintiff's claim was supported, in respect of the first two points, by P.Ws. 3, 4, 11, 12, 14, 15 and 16 and in respect of the third point by P.Ws. 3, 6, 7, 8 and 9. Of these witnesses P.W. 16 is the plaintiff mother Meher Shamsunnahar and as such is interested in his case, but the remaining witnesses are found to be independent and disinterested persons having no grudge or enmity with the defendant whatsoever. Of them P.W. 4, aged about 79 years, is a retired Secretary of Rajshahi District Board, claiming to be acquainted with late Amir Ali, having occasionally visited Amir All's house. P.W. 4 (76) is a retired teacher of a Government High Madrassa and Amir All's neighbour having personal knowledge about Amir Ali's family and his wives. P.W. 10 (80) was the Secretary of Saheb Bazar Mosque in Rajshahi town and thereafter its Imam and was a friend of Amir Ali and P.W. 11 (70) is a retired Sub-Inspector of Police who was Officer-in-Charge of Rampm Boalia Polios Station in 1952/53 and had personal knowledge about Amir Ali's family, P.W. 12 was a Car Assistant of Amir Ali having personal knowledge about Amir Ali's family; P.W. 14 (70) was Amir Ali neighbour having personal knowledge about his family P.W.S was a clerk of Amir Ali from 1941-46 and had personal knowledge about Amir Ali's family and his wives. On toe other hand, D.W. 1 it defendant Khorshed Alam himself; his claim was supported by DWs. 4, 5 and 7. Of them D. W. 5 did not depose from his personal knowledge, but he, as Ward Chairman, held an enquiry in course of which he met Baramoni of Natore who told him that the defendant was not her ton. He however admitted during cross examination chat ha had add tae enquiry without serving any notice upon the parties and that he secretly met Baramoni who then told him that the defendant was not her son. This part of his evidence is inadmissible being hearsay, P.W. 4 said that when he was a student he had been Monowara Begum, mother of the defendant and called her Chaachi-Amma; D.W. 7 an Advocate, stated that he had heard from the late Amir Ali that the defendant was his eldest son. D.W. 8, Junior Advocate, was examined to prove the affidavit, Ext.H (2) sworn by one Dr. R U Khan, a retired Food Controller in That affidavit the deponent stated before another advocate (to whom D.W. 8 was a junior that in 1929 or so he had attended Amir Ali marriage with Monowara Begum. But the plaintiff sworn on 6-2-68 when the dispute already started; the deponent not being examined in support of the affidavit it got no evidentiary value as it has been challenged.
45. Having considered these two best of evidence the Courts below disbelieved the evidence of the D.Ws. particularly D. W. 1, the defendant, and came to the finding that Amir Ali had no wife named Monowara Begum, that the defendant was foster son of Zohora Khatun and Amir Ali and that the defendant was son of Baramoni of Natore. find that rejection of the evidence of D.W.1 is not arbitrary, but is founded on cogent reasons and proper appreciation of the evidence according to rules of evidence. D.W.1 made inconsistent statements vis-a-vis his deposition in the two previous suits in 1966 regarding his mother's existence, name, whereabouts, as well as addresses and whereabouts of any relations of his mother, etc. In 1966 be even could cot give the name of his mother or say whether she was alive or dead; but in this suit filed in 1977, he claimed that Monowara Begum of Calcutta was his mother and that she was a married wife of Amir Ali. He contradicted himself in respect of his own place of birth, saying that he was born in Calcutta whereas in the Money Suit he stated that he was born in Amir Manzil, Rajshahi. He also contradicted himself about the place of his mother's death saying in one of the previous suits that his mother had died in Rajshahi Town, but now laying that she had died in Calcutta. He could not produce his birth-register or his mother's death register or any Kabinnama of his mother's marriage or any relation of her mother. Trial courts below particularly considered the fact that though he went to Calcutta on many occasions, he never visited the house of his maternal grand father, nor did be ever try to ascertain who washes maternal grandfather or where did he live or what was he and no member of Amir Ali's family or his relations came forward to say that Amir Ali ever got a wife named Monowara Begum.
46. As against the oral evidence as discussed, I shall look into the documents filed by the parties. These documents relate to the acknowledgement of Amir Ali as well as its annulments. The courts below, as already pointed out, proceeded on the assumption that the defendant got in his favour a good acknowledgement of Amir Ali and cast the onus to nullify the acknowledgement upon the plaintiff. Contention of the plaintiff is that the documents apparently evidencing 'acknowledgement' are In fact not any documents of acknowledgement but were intended to give the defendant a status in life and society and to avoid embarrassment. Ext. C is a copy of deposition of Amir Ali in a criminal case between other parties in 1933. There Amir Ali stated in cross-examination that the boy Khorshed Alam aged about two years was his son this statement Amir Ali made when he denied that he had brought a woman from Darjeeling, meaning his wife Zohora Khatun Who was admittedly brought from Darjeeling. The next documents as to acknowledgement are Ext.D, a Kabinnama dated 23-3-51 and Ext. D(1) another Kabinnama dated 13-3-53. These two Kabinnama relate to the first and the second marriage of the defendant and in those Kabinnama Amir Ali appeared as a witness stating that Khorshed Alam was his son'. The most important document regarding the acknowledgement is Ext G, an "Karma" executed by Amir Ali on 19 March, 1953 in favour of one Hafizuddin whose daughter Nazli Begum was married to Khorshed Alam under the Kabinnama Ext D(1). There Amir Ali stated that Khorshed Alam was this eldest son" and promised that he would execute a Heba-deed in favour Zhora Khatun. Khorshed Alam and Nazli Begum giving each of them l/3rd share of his three-storied building known as "Amir Monzil, In the same Ekrarnama Amir Ali made it clear that his son through Meher Shamsunnahar would be the next Mutwalli on his death. This document is sought to be interpreted by both the parties to get support to their rival claims the defendant saying that it was a clear admission of fatherhood and the plaintiff saying that if the defendant were really Amir Ali's eldest son. He would have become the next Mutwalli in terms of the Waqf-deed, Ext 11, which Deserved the Mutwalliship for Amir Ali's eldest son, Ext. E series are rent-receipts-in respect of a hotel housed in a part of the Waqf property; in these rent-receipts the defendant was shown as Amir Ali's son. There are the documents which contain Amir Ali's statements admitting the defendant as his son. The other documents are papers like Income tax receipts, nomination papers, private letters, etc. in which the defendant was referred to as Amir Alt's son, but these papers did not contain any statement of Amir Ali; nevertheless, these documents relating to different matters and transactions spread over a considerably long period of time upto the year 1964 Considering all these documents a reasonable conclusion can be drawn that Amir Ali bad acknowledged the defendant as his son, sometimes as his eldest ion, from 1933 to 1964.
47. Thereafter, from 1965 till his death in 1967, Amir Ai made statements denying that the defendant was his son but contending that be was his foster son. The plaintiff produced documents containing those statements. Ext.3 is a certified copy of the plaint of Monzil Suit No. 33 of 1965, renumbered as M.S. No. 5 of 1966, which was filed by Amir Ali against the defendant claiming arrears of rent in respect of a plaint of the Waqf state. In that plaint the defendant was shown as his foster son Ext 7 is the plaint of another suit—O.C. Suit No. 381 of 1966, filed, by Amir Ali for ejecting the defendant stating that the defendant’s parentage was unknown. Ext.5 is Amir Ali's deposition in M.S. No. S of 1966 where he said that the defend ant was his foster-son. Ext1 is a petition dated 14-3-66 of Amir Ali addressed to the Commissioner of Waqf in which he stated that the defendant Khorshed Alam) was not his son but was his foster son, that the plaintiff Amir Sultan Ali was his 'eldest son and eligible for appointment of Mutwalli in terms of the Waqf deed. Ext. 1 (a) is an affidavit sworn by Amir Ali on 6-3-67 in respect of his petition Ext.1 in which he reiterated that Khorshed Alam was not his son but was his foster son. About one month thereafter Amir AH died and thus the struggle for succession to Mutwalliship began. It was argued in the Courts below that the question of legitimacy was rated and the acknowledgement was annulled at the instance of plaintiff's mother before Amir All's death. Evidence however shows that this question was raised as far back as 1933 when the defendant was a child of two years that is. Seven-years before the marriage of plaintiff's mother. As to acknowledgement, subsequent annulment got no legal effect. But the plaintiff has not built up his case on the annulment; he has built up his case on positive evidence of competent witnesses that the defendant was not born of any of Amir Ali's wives. The trial Court and the lower Appellate Court on consideration of the evidence found that the presumption of son-ship raised by the acknowledgement has been rebutted by the unimpeachable oral evidence that the defendant was not born of any wife of Amir Ali. This finding of fact is based on impregnable mass of good evidence and appreciation of this evidence being correct and proper the finding is as strong as granite pillar which is too strong to be dented by tie fragile weapon of revisional jurisdiction. Interference with this finding in revision will be disobedience to toe direction of law.
48. In this appeal the appellant challenged the finding that he was born of Baramoni of Natore taking the ground that Baramoni, though alive, was not examined by the plaintiff P.Ws 5,6,7,8 and 9 gave testimony from their personal knowledge that the defendant was son of Baramoni from whom he was taken by Zohora Khatun. Linking Zohora Khatun with the defendant in the Ekrar Ext. G provides support to the claim that she had fostered him. Of these witnesses P.W.5 was a Pankha puller of Natore Rajbari, for about 22 years; he said that sometime in 1933 he law Baromoni frequently visiting the Raibari carrying a little boy and that on the advice of the Raja who was a friend of Amir Ali. The latter took that child aged about 11/2 years, to be fostered by his second wife Zohora Khatun. P.W.5 was an assistant of Amir Ali in his fruit shop at Natore. He claimed to have known Baromoni personally, and deposed that the defendant was Baromoni's son. These witnesses being disinterested their evidence was accepted by the Courts below as reliable. As to Baramoni non-examination in this case, the plaintiff got cogent reasons not to call her as a witness, since she was expected to given evidence which would certainly affect her own son's interest, besides raking the past. Disclosure of the real fact by her would at once disentitle the defendant to claim inheritance from late Amir Ali. This recalls the case of the two women putting up claim to sonship of an infant before King Solomon. When the King decided that the infant would fee cut and divided into two pieces —one for each of the claimants, the real mother abandoned her claim in order to save the life of her son. Even if it is taken that Baromoni was not the defendant’s mother, still the plaintiff's case would not suffer and the defendant's care would not improve in any way. For, plaintiff's failure to prove that the defendant was Baromoni’s son will not mean that the defendant was born of Monowara Begum and that Monowara Begum was a married wife of Amir Ali. That claim of the defendant has been disproved by strong evidence. "Legitimacy from marriage follows the bed" as has been observed by the Privy Council in Ashraf-ud-Daula v Hyder Husain, 11 M. IA 94, 'Bed' means relationship of husband and wife by a valid marriage under Mohammadan Law. Such relationship between Amir Ali and alleged Monowara Begum has been disproved in view of the fact that she was held to be a fictitious person. In the case of Azmal Khan v. Lalli Begum, 91. A 8 and also in the case of Allahadat Khan, as referred to above, the claim of legitimacy by acknowledgement was accepted by the Court when the marriage concerned was "neither proved nor disproved". But this is not the case here. Facts of those two cases as well as of the case of Habibur Rahman Chowdhury and Sadeq Hossain, already referred to above, are altogether different from that of the instant cases.
In none of these cases, maternity of the person acknowledged was questioned: in each such case the mother was a denote woman, but her marriages with the acknowledger was in dispute in the instant case, the defendant's claim of being born of Monowara Begum was disputed, and now disproved, and consequently the acknowledgement of Amir Ali is useless. It must be borne in mind that 'acknowledgement' in Mohammadan Law is no substitute for 'adoption’ Hindu Law or Roman Law. Under Mohammad Law relationship by consanguinity is a pre-requisite for legitimacy and the latter it dependent upon a valid marriage of the parents. If Amir Ali had acknowledged the defendant as his &on, then he knew better who was the defendant's mother but that woman not being any of his three wives the defendant is not his legitimate son. That ends the whole matter. Tae learned Single Judge is found to have rightly refused interference with the finding of the courts below which stands on a solid rock.
49. In the result, the appeal is dismissed. I do not make any order as to costs.
Chowdhury A. T. M. Masud, J.—I have gone through the judgments written by Badrul Haider Chowdhury and Shahabuddin Ahmed JJ. I concur with the decision of Badrul Haider Chowdhury, J.
By the majority opinion the appeal is allowed and all the Judgments and orders of the court below are hereby set aside and the suit is dismissed. No costs.