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First Appeal No. 15 of 1945, decided on 17th April 1958.
‑Recital in‑Rebuttal‑Assertion in Will that testator has neither brother nor cousin‑Reliable evidence in rebuttal necessary.
‑Marriage‑Proved by direct evidence or presumptive proof.
A valid marriage may be proved by direct evidence or pre sumptive proof. The continual cohabitation of the alleged parents and acknowledgment of the child by the father is presumptive evidence of marriage between the parents and of the legitimacy of the offspring.
‑Legitimacy‑May be presumed or inferred from circumstances.
So far as legitimacy of a child is concerned it may be presumed or inferred from circumstances without any direct proof either of the marriage or any formal act of legitimation.
In cases where the marriage is not capable of being easily proved, the status of the children is generally presumed either from express acknowledgment by the father or from a course of treatment by the father to the mother and the child or from the evidence of repute and notoriety amongst the members of the family, community and respectable members of the locality. But in the absence of such evidence or circumstances sufficient to found such a presumption or inference claim by a party as a legitimate son and to the share in the estate of a Muhammadan father is bound to fail.
Mahomed Bauker Hoossain Khan Bahadoor v. Shurfoon Nisssa Begum 8 Moor's Indian Appeals 136 and Khajah Hidayat Oolah v. Rai Jan Khanum 3 Moor's Indian Appeals 295 ref.
‑Evidence‑Witness cannot testify to anything which he has not seen except in case of relationship, death and marriage.
, S. 50‑General repute on question of relationship may be admissible in some cases.
Maharaja of Kolhapur v. S. Sundaram Ayyar and others A I R 1925 Mad. 497 rel.
‑Evidence‑Case cannot be established by weakness of case of opponent.
‑Will ‑ More than 1/3 of property cannot be willed to stranger.
Jamiatrai for Appellant.
Abdul Raoof for Respondents.
--- This is an appeal against the judgment of Mr. Feroze Nana Ghulamali, First Class Sub‑Judge, Hyderabad in Suit No. 69 of 1943, decided on 23rd December 1944 whereby the respondents' suit for declaration was decreed.
The dispute in this appeal relates to the estate of Bachal Shah. The property in dispute is agricultural land mentioned in Schedule A' filed with the plaint situated in Deb Sandan Tapo Virato Taluka Hala and one residential house situated at New Hala Taluka New Hala mentioned in Schedule B'. This property is alleged to have been bequeathed by Bachal Shah under a Will dated the 8th of October 1940 registered on the 30th of January 1941 to Mst. Asiat, respondent No. 1 Bachal Shah died on the 20th of February 1941 at Hala. After his death the property, in dispute was claimed on the one side by both Mst. Asiat, respondent No. 1 and Ramzan Shah, respondent No. 2 and on the other side by the appellant, Mst. Bibi Amu. The dispute came up before the Revenue Autho rities. They accepted the claim of the appellant Mst. Bibi Amu and by an order dated 6th December 1941 mutation of the agricultural land was effected in her favour. Respondents 1 and 2 there upon filed a suit on the 17th of December 1941 in the Court of the First Class Subordinate Judge, Hyderabad for declaration that the agricultural land belonged to Bachal Shah, that he has given these lands to Mst. Asiat under a Will, that Ramzan Shah was the brother of Bachal Shah, that he had consented to the will and Mst. Asiat was the sole owner of the agricultural lands. It was further claimed that the residential house in dispute originally belonged to one Sadiq Shah, that he was survived by his two sons Bachal Shah and Ramzan Shah, who became the owner of this house to the extent of I each that the half of the property was rightly bequeathed to Mst. Asiat and the rest of the still belonged to Ramzan Shah and therefore a declaration to that effect may be made. The claim of appellant Bibi Amu to the property of Bachal Shah, was denied and a declaration was sought that she had nothing to do with the property of the deceased. In the alternative it was claimed that if Bibi Amu was found to be an heir of deceased Bachal Shah, the property in dispute may be partitioned between the parties and separate possession may be awarded of the property fallen to Mst. Asiat's share. The dispute between the parties was mainly on two questions, in the suit under appeal, namely whether Ramzan Shah was the heir of deceased Bachal Shah or Mst. Bibi Amu was his heir, being the daughter of Mirzadi, the real aunt of the deceased and whether deceased made a valid Will in favour of Mst. Asiat to which Ramzan Shah had consented. The learned Subordinate Judge, after recording the evidence and considering the case on merits, came to the conclusion that respondent No. 1's claim was correct, that the property had been bequeathed to her, that Ramzan Shah was the brother of deceased Bachal Shah, that appellant Bibi Amu was not the legal heir of the deceased Bachal Shah and that Mst. Asiat was entitled to the agricultural propertylin dispute. He there fore passed a decree for declaration in favour of respondents.
Written Statements were filed and on the pleadings of the parties the following issues were framed :‑
(1) Is the suit bad for misjoinder of parties, and causes of action
(2) Are the plaintiffs in possession of the property in suit If so, is the plaint insufficiently stamped
(3) Is plaintiff No. 2 son of Siddiq Shah and brother of Bachal Shah
(4) Did Siddiq Shah gift the properties in suit to Bachal Shah in his life time as alleged in paragraph 3 of the plaint
(5) Was Bachal Shah in a sound state of mind when he bequeathed his entire property to plaintiff No: 1 by Will If not, what is the effect
(6) Did plaintiff No. 2 assent to the said Will
(7) Is the defendant daughter of Siddiq Shah's sister If so, what interest has she in the property in suit
(8) What, if any, is the extent of plaintiff's right over the property in suit
(9) Are plaintiffs entitled to the partition sought (10) What should the decree be
The appellant has challenged the decision of the learned Subordinate Judge on all the issues except on issues I and 4.
Before dealing with the contentions raised by the learned counsel for the appellant, it would be desirable to mention here that the appellant died on 21‑3‑1957 and she is represented by Haji Shah who was brought on record as legal representative on 10‑2‑1958. Respondent No. 1 died at Hala on 17th January 1951 and she is represented by Nobhu as legal representa tive brought on the 8th of February 1951. Respondent No. 2 died at Hala on the 19th of January 1950 and he is represented by respondent No. 1 and after her death is now represented by Nobhau brought already on record . . . . . . .
The decision of this case mostly depends on the question whether Ramzan Shah, respondent No. 2, since dead, was the son of Siddiq Shah and brother of Bachal Shah. This question is covered by issue No. 3. The finding of the learned Subordinate Judge is in favour of the respondent. Respondent No. 2 produced both oral and documentary evidence in support of his claim that he was the son of Siddiq Shah and brother of Bachal Shah. Important documents produced by him are Exh. 84‑Pilgrim Pass, Exh. 87‑Certificate of Vaccination, Exh. 91‑Mortgaged Deed, Exh. 97/1 to Exh. 97/7‑Seven postcards and two envelopes addresed to him and Exh. 98 an envelope. Out of them Exh. 84 and Exh. 87 are dated 15th March 1940 and 14th March 1940 respec tively. In these two documents he has been described as Ramzan Shah son of Sidiq Muhammad Shah and Bachal Shah is mentioned as his legal representative and brother. Exh. 91 is the mortgage deed dated the 19th of May 1911 by Ramzan Shah in favour of Tahilmal, Punjabi, resident of Halla District Hyderabad in respect of residential‑house in the village of Hala. In this docu ment there is a recital that this house originally belonged to Siddiq Shah that respondent No. 2 inherited it and in that capacity mortgaged it for Rs. 150. It was alleged that Exh. 91 was in respect of the same house mentioned in Exh. 90 situated in the street of Chokidari Ghat in Hala by one Haji Ahmed in favour of Sadik Shah. But the boundaries of these two houses do not tally with each other and they appear to be situated in two different localities. The contention that they relate to the same property is not well founded. Exh. 97/5 is of December 1941. Exh. 97/6 is dated 10th of May 1942, Exh. 97/7 is dated 19th of March 1942 and Exh. 97/1, 97/3 and 97/4 are of 25th March 1915, 6th June 1923 and 8th February 1935 respectively. Exh. 97/2 bears no date but appears to be an old postcard. Exh. 98 is an envelope addressed to Syed Ramzan Shah C/o Deo Konarkar, Old Hala.
Respondent No. 2 also produced P. W. Nazar Muhammad Exh. 102, P. W. Ali Muhammad, Exh. 103, P. W. Biland Shah, Exh. 104, P. W. Nasir Muhammad, Exh. 105 and P. W. Haji Muhammad Shah, Exh, 118. Respondent No. I Asiat Bibi, Exh. 101, also supported him. Respondent No. 2 was also exa mined as Exh. 83. All the witnesses produced by respondent No. 2 do not belong to the town of Hala itself but of villages situated near about Hala. They are also not related to Sidik Shah or Bachal Shah. The evidence of some of the witnesses including respondents' statement shows that Sidik Shah married a Memon lady known as Jannat and Ramzan Shah is the son of Sidiq Shah through her. They also stated that Sidiq Shah got annoyed on Ramzan Shah as he had become Shia. He therefore disinherited him and gifted all his property to Bachal Shah. Ramzan Shah, however, continued to live with his father and after his death with his brother at the residential house which is the subject‑matter of dispute in the present case. But these witnesses admitted that Mst. Jannat Bibi was a Memon girl, that Sidiq Shah was a Sayyed of the very highest class and Mst. Jannat on her death was not buried in the family graveyard of Sidiq Shah.
The oral evidence produced by respondent in support of his claim that he was the son of Sidiq Shah is most unsatisfactory. The witnesses produced by him have not given the pedigree of his family. They were unable to give the names of the near relations. Some of them namely, P. W. Bulan Shah the most important witness and the only Sayyed produced by them was unable to give the name of the father of Sidiq Shah. Even respondent No. 2 was unable to give the name of his great grand‑father. The evidence of all the witnesses is full of falsehood. Some of them have gone much further than the case set up by respondents that his father had gifted the property to Bachal Shah. P. W. Ali Muhammad (Exh. 103) and P. W. Nasir Muhammad have stated that Bachal Shah and Ramzan Shah were in joint possession of the agricul tural land and enjoying the produce jointly. P. W. Ali Muhammad is a bailiff and stated that one of his daughters was married to Bachal Shah but strangely enough did not mention the name of this daughter. Respondents nowhere stated that Bachal Shah had married twice. The evidence of this witness appears to be a tissue of lies. Almost all the P. Ws. have made deliberate attempt to conceal facts. They were fully aware that Mir Muhammad Shah was the general attorney of the deceased but this fact was denied by all of them. Some of the witnesses even denied that respondent Ramzan Shah was a carpenter by profession, which fact both the respondents admitted.
Such being the unsatisfactory state of oral evidence we care fully considered the, documentary evidence produced by the respondents. These documents also are not of very great help. Most of them are Kabuliats and Assessment receipts paid during the lifetime of Bachal Shah and are all in his favour. The pro duction of these documents by respondents is not of much impor tance as admittedly at the time of the suit, they were in possession of the residential house of the deceased. There are some documents of the year 1940 and after the suit was filed, but no importance can be attached to them for the proof that Ramzan Shah is the son of Sidik Shah. There are, however, two registered documents Exh. 90 (Sale Deed) and Exh. 91 (Mortgage Deed). They relate to different properties and contradict the statement of Ramzan Shah that they are of the same property. Their description, boundaries and situation are different. There are some post‑cards and letters namely Exh. 97/1, Exh. 97/2, Exh. 97/3 and Exh. 97/4. In these respondent No. 2 has been described as Ramzan shah son of Sidik Shah. Thus the fate of the issue whether Ramzan Shah is the son of Sidik Shah rests on the value of the documents mentioned in this para.
The learned Subordinate Judge appears to have been much impressed by Exh. 91, the mortgage deed executed by respondent No. 2 in 1911 in respect of a house situated in New Halla. This document was executed by respondent No. 2 and the recital made therein at the most is an admission in his own favour that he is the son of Sidik Shah it may be that respondent No. 2 is the illegitimate son of Sidik Shah and for that reason might have been claiming to be his son. Sidik Shah admittedly was a big Zamindar and the claim of the offspring from their concubines and keeps belonging to low caste class are not common in the area known as the old Province of Sind. This may be one of those cases. There is no reliable evidence produced by respondent No. 2 to prove that his mother Mst. Jannat was married to Sidik Shah and he was born from that lawful wedlock. There is not even reliable evidence to show that Mst. Jannat Bi used to live continuously as wife with Sidik Shah under the same proof of Hala. On the other hand the will (Exh. 81) relied upon by both the respondents, recites that Bachal Shah had no brother or cousin alive at the time of its execution. This deed was executed in October 1940 in favour of the wife of respondent No. 2. It recites as under:‑
"I the Executant (Legator) am a man of advanced old age. I have no issue of my own, nor have I any brother or cousin who may become heir of my property by Muhammadan Law. I have only a maid servant the aforesaid Legatee and who is serving me the Legator faithfully and loyally".
If the contention of the respondent is correct that respondent No. 1 was the wife of respondent No. 2, the real brother of Bachal Shah, certainly this fact would have been mentioned by the deceased in the Will itself. But there is definite assertion in the Will by Bachal Shah that he had neither a brother nor a cousin. In the face of A this recital it was incumbent on respondent No. 2 to produce reliable evidence to rebut this important recital. In our opinion respondent No. 2 has failed to do so. In the ordinary course of events the document being in favour of respondent No. 2's wife, the deceased would have mentioned that respondent No. 2 was his brother, that he had gone to Karbala and that Mst. Asiat was the wife of his brother and out of love and affection he had bequeathed all his property in favour of respondent No. 1 Asiat Bibi. It is admitted by both the respondents that relations between Bachal Shah, respondent No. 2 and respon dent No. 1 were very cordial at the time when this document was executed by him in favour of respondent No. 1. In these circumstances it is difficult to accept the argument advanced by the learned Subordinate Judge in his judgment that as Ramzan Shah was a Shia, this fact was concealed by Bachal Shah in this document. On the contrary order to make the document more authentic and genuine the fact that the property was bequeathed in favour of his wife's mother should have been mentioned and ought to have found its way in it. The document was written by one of the most clever scribes in the City of Hala. This scribe was examined as a witness in the case. Even he has not deposed that Ramzan Shah was the brother of Bachal Shah. One of the attesting witnesses of this document P. W. Shewak ram a resident of Hala, has also not stated that Ramzan was the brother of Bachal Shah.
The learned Subordinate Judge has not appreciated the principles of Mohammadan Law applicable to such cases. According to well established principles of Muslim jurisprudence a valid marriage may be proved by direct evidence or presump tive proof. The continual cohabitation of the alleged paret1ts and acknowledgement of the child by the father is presumptive evidence of marriage between the parents and of the legitimacy of the offspring. So far as legitimacy of a child is concerned it may be presumed or inferred from circumstances without any direct proof either of the marriage or any formal act of legitr mation. Their Lordships of the Privy Council in Muhammad Baukar Hoossain Khan Bahadoor v. Shurfoon Nissa Begum (1) observed :‑
"But in arriving at this conclusion, they wish to be distinctly understood as not denying or questioning the position that, according to the Mahomedan law, the law which regulates the rights of the parties before us, the legitimacy or legitimation of a child of Mahomedan parents may properly be presumed or inferred from circumstances without proof, or at least without any direct proof, either of a marriage between the parents, or of any formal act of legitimation".
It has also been accepted that the determination of such questions, will to a certain extent, be governed by the same principle of evidence as the Muslim lawyers would apply in such cases. Their Lordships of the Privy Council in Khajah Hidayut Oollah v. Rai Jan Khanum (2) observed : ‑
"We apprehend that in considering this question of Mahomedan law we must, at least to a certain extent, be governed by the same principle of evidence which Mussulman lawyers themselves would apply to the consideration of such a question".
Now what are the principles of evidence which are applied by Muslim jurists in such cases According to them it is notl1 permissible for a witness to testify to anything that he has not seen except in case of nusub, death, and marriage. Baillie in his book "A Digest of Mohammadan Law", (Second F,dition, 1875) at page 428 has discussed this subject in detail and observed :‑
"It is not lawful for a witness to testify to anything that he has not seen, except nusub, death, marriage, consummation, and the authority of a Judge; and it is competent to him to testify to these matters, when informed of them by a person in whom he has confidence. This is on a favourable construction, for by, analogy it would be unlawful, since Shuhadut
(1) 8 Moor's Indian Appeals 136
(2) 3 Moor's Indian Appeals 295 at page 318 (testimony) is derived from, "mooshahudut, which signifies being present; but a more favourable construction has been adopted in these cases, because the causes of them can be seen by only a few special witnesses, and rights of great importance, which are dependent on them might otherwise be injured or delayed ; and it is lawful to the Witness to testify to them on continuous notoriety, or information that can be confided in, it being a condition that the information shall be received from two just men, or one man and two women, in order that a kind of knowledge may be obtained thereby".
The learned author at page 430 observed :‑
"When witnesses have testified to a matter which, may be lawfully attested by hearing, and said, 'We have not seen it, but is notorious to us,' their testimony is lawful. Notoriety in nusub, etc., is of two kinds: Hukeekee, or actual, and Hookmee, or in effect. Actual is when a fact 'is publicly known and has been heard of from so many persons, that it i3 not conceivable they should all agree in a lie ; and in this kind the justice of the persons, and their use of testifying language to the witnesses, are not conditions ; all that is required being that the report should be continuous or unbroken. Hookmee is when a fact is testified to the witness by two just men, or one just man and two just women in words of testimony ; that is; when they have borne testimony without having been called upon to testify by the man in whose favour the testimony is given ; for Muhammad has stated in the book of Shuhadut, that when one has met two just persons who testify to the nusub of a particular individual, and know his condition, it is competent to him to bear witness to the fact, but if the individual have set up the two witnesses to testify to his nusub, it is not competent to the first persons to testify to it ; 'and if a man should come to the Zukuranee tribe, and should say to them (they not knowing him). I am such an one, the son of such an one', it is not competent to them (said Muhammad) to testify to his nusub, until they meet two just men of his city who testify the fact to them and Jussas, in his comment' on the book, has said that this is correct. It is said with regard to death, that information by one man or one woman is enough, and this is correct ; and all are agreed that words of attestation are not a condition. When a person has been present at the burying of another, or has prayed over his body, this is seeing his death, so that, though he should explain, his testimony is to be received. If news should arrive of the death of a person, and what is usual on occasions of death should be done, it is not competent to give information of the death, until you 'are informed confidently by one who saw his death."
Even under the Indian, Evidence Act in some cases evidence of general repute on a question of relationship has been held admis sible. In Maharaja of Kolhapur v. S. Sundaram Ayyar and others) (A I R 1925 Mad. 497 at p. 513) it was observed :‑
"Much may be gathered from the treatment accorded to them by the Raja, so far as the records are available of such treatment and from the way in which 'they speak of themselves in official documents and petitions and legal proceedings in which they were parties. Evidence of this kind is conduct admissible under S. 50 of the Evidence Act (See illustration (b)), as it shows the repute in which sword marriage was held in this family".
It will be thus observed that in these cases where the marriage is not capable of being easily proved, the status of the children is generally presumed either from express acknowledgement by the father or from a course of treatment by the father to the mother and the child or from the evidence of repute and notoriety amongst the member of the family, community and respectable members of the locality. But in the absence of such evidence or circumstances sufficient to found such a presumption of inference claim by a party as a legitimate son and to the share in the estate of a Mohammedan father is bound to fail. It is unfortunate that the learned Subordinate Judge failed to approach the present case in the light of these principles.
There is no such sufficient evidence or circumstances produced on behalf of the respondents in the case under appeal. The documentary evidence does not carry the question any further than that Ramzan Shah claimed to be the son and received letters under that name. The oral evidence produced by respondent No. 2 is of those who are not citizens of Hala, do not belong to his community and are not his relatives.
On the other hand the appellant has produced several witnesses to show that Ramzan Shah was not the brother of Bachal Shah. Amongst them there are respectable inhabitants of Hala itself, both Hindus and Muslims, who are neighbours of deceased Bachal Shah. Their evidence conclusively proves that Ramzan Shah was not the son of Sidik Shah and was never treated by Sidik Shah as his son. D. W. Jethmal (Exh. 119) is the neighbour of Bachal Shah. He purchased property from Sidik Shah and Bachal Shah by means of a sale deed (Exh. 120). He has definitely stated that Ramzan Shah is not the son of Sidik Shah and that he is the son of Mst. Jannat. D. W. Ali Muhammad, an old man of 80 years (Exh. 129), another neighbour of Baehal Shah has stated that Ramzan Shah is not a Sayyed and is not the son of Sidik Shah. D. W. Mir Muhammad Shah (Exh. 145) is the most respectable and important witness produced on behalf of the appellant. He is the only Sayyed belonging to the community of Bachal Shah. He is also related to the deceased, as his real aunt, the real sister of his mother, Bibi Saloo was married to the deceased. This fact is also admitted by respondent No. 1. This witness was also the general attorney of Bachal Shah and is evidenced by a document executed by him on 29th February, 1936, in that capacity in favour of Karo son of Yousif (Exh. 120). This witness therefore must be a regular visitor and closely in touch with the deceased for over 15 or 16 years. He continued to be the agent till the death of the wife of Bachal Shah. He has emphatically denied that Ramzan Shah was the brother of the deceased and also denied that Ramzan Shah ever lived with the deceased during his life time. There is no reason to disbelieve the evidence of this witness. Upon his statement, undoubtedly, the claim of respondent No. 2 to be the brother of Bachal Shah is without any legal basis and foundation.
The learned Subordinate Judge in our opinion approached the question under consideration, as if the burden of the issue, that Ramzan Shah was the son of Sidik Shah, was on the appellant. He has criticised their evidence, found fault with them and came to the conclusion, that the issue is proved. According to law, the case of a party cannot be established by the weakness of the case of his opponent: We have carefully considered the criticism levelled by the learned Subordinate Judge of the appellant's evidence and we are clearly of the opinion that he was not justified in summarily rejecting the evidence of Haji Mir Muhammad on the ground that the respondents were entirely responsible for this witness giving up Bachal Shah's lands: This observation is not based on any legal evidence produced on the record. There is also no justification to discard the evidence of the witnesses who reside at Hala on the ground that there being a dispute between the Sunnis and Shias of this locality, they are supporting the appellant because she happened to be a Sunni. No such question was put to the appellant's witnesses. In fact no Shia resident of Hala Town came forward to depose about it. Curiously enough the learned Subordinate Judge has accepted the explanation of Ramzan Shah that his wife was described in the will as maid servant and his name was not mentioned in it, because Bachal Shah thought he was dead. There is no other evidence about it except the statement of Ramzan Shah. In our opinion admittedly Ramzan Shah had gone to Karbala for a month, he returned from there within this time and there is no explanation about his absence from Hala for about a year till the Will was executed. The learned fell into a great error in accepting such unfounded explanation.
The mere fact that D. W. Jethmal (Exh. 119) stated that Mst. Jannat used to come and live in Sidik Shah's house and that she was subsequently forbidden by him from coming, by itself does not lead to the conclusion that she used to come as wife of deceased Sidik. In Mahomed Baukar Hoosain Khan Bahadoor v. Shurfoon Nissa Begum (8 Moore's Ind. App. 136) the evidence in proof of the marriage was much more stronger. The appellant Muhammad Baukar Hoosain Khan Bahadoor claimed to be the brother of Shasavar Jung Bahadoor and son of Oomdut Ool Oomrah, a former Nawab of Carnatic. In that case the appellant was generally reputed to be the son of the Nawab and soon after the death of his father, as a member of the Nawab family, was enjoying pension from the Government. But on consideration of the facts of the case their Lordships at page 154 of the report observed :‑
"The case, too, thus regarded, there is no proof that Oomdut Ool Oomrah at any time treated, recognized or acknowledged the Appellant as his son, and it does not (we think) help the Appellant that, soon after his alleged fathers's death, the Appellant, as a member of Oomdut Ool Oomrah's family, had a pension from the Government, which the Appellant still enjoys, and which there seems to their Lordships to be no reason in point of justice, fairness, or propriety, why he should not continue to enjoy. That pension was, with the assent and concurrence of the family of Oomdut Ool Oomrah, certainly allotted to the Appellant, then a minor, in very early childhood, as a son of Oomdut Ool Oomrah, but also as the son of Chattore, which by adoption, though by adoption alone, as already mentioned, the Appellant was nor can be, in our opinion, be taken to have had, or to be enjoying, any Govern ment pension or Government allowance whatever, in the charac ter of a son, of Ameen Sahiba. It was for the pecuniary interest of Chattore, with whom the mother and the son were living, to represent the Appellant as Chattore's son, and if Ameen Sahiba was not a widow of Oomdut Ool Oomrah, it was for her interest also, and that of the Appellant, that he should not be represented as her son. Their Lordships are of opinion, that unless the testimony forming what their Lordships term the first portion of the evidence ought to be deemed credible and of some weight, the Appellant's claim fails."
After discussing the testimony about the marriage between the mother of the appellant and the Nawab of Carnatic, their Lord ships at page 157 of the report observed :‑
"Whatever may have induced the ladies to give this testimony, their Lordships find themselves unable to credit it. They think it very highly improbable that if a ceremony of marriage bet ween Oomdut Ool Oomrah and the Appellant's mother of any such kind as that stated, or of any kind, had taken place with such a degree of publicity as that alleged by the two ladies, or with anything like it, the fact would not have been proved also by some other witnesses or witness, notwithstanding the lapse of time. Nor do their Lordships believe that Chattore or Ameen Sahiba would so have conducted herself, or so acted, as they respectively appear to have done, if there had been any such marriage. The conduct of both is so strongly opposed to the notion of a marriage between the protege, dependant, or servant, and the husband of the protectress, patroness or mistress, as to render it impossible for their Lordships to think that such a marriage took place, upon the foundation merely of the evidence belbre them. Why "had not Ameen Sahiba, why did she not claim, a house or establishment of her own Why did she continue in that of Chattore Why not have, why not claim, an allowance from the Government Why concede, as she seems to have conceded, h ‑r son to Chattore Why rest contented or discontented in the humble and dependent, and almost, if not altogether, ignominious position in which she remained, when five wives of the Prince (her husband as now alleged) had establishments and allowances agreeing with his rank Their Lordships think that not a single portion of the evidence of either of these two ladies can be trusted ; and if that is so, there is (it cannot be necessary to repeat) no proof that Ameen Sahiba was ever married, nor proof that she ever represented herself as a married woman, or as a widow, nor proof of any acknowledgement on the part of the alleged father by word or deed, by language or conduct, that he was her husband, or the father of her son.".
We have carefully considered the evidence produced by the parties. The evidence in this case is of a much weaker nature. It appears to us that respondent No. 2 no doubt after the death of Sidik Shah, was creating evidence in his favour that he was the son of Sidik Shah. But he did not prefer any claim to the property left by him during the life time of Bachal Shah. It may be due H to the fact that he would not be able to substantiate his claim. There is, however, no cogent evidence on the record to establish that he is the son of the deceased Sidik Shah. In our opinion the absence of the evidence of the relatives, of the neighbours and the members of the deceased's community are sufficient to disprove his claim. Besides the fact that his mother belonged to a different community, that he himself married a woman of another com munity, that he was never treated or acknowledged by his father and brother as his son and brother respectively, that although he claimed to have continued to reside with his brother after the death of his father ; yet all the letters were addressed to him on other addresses conclusively shows that respondent No. 2 has failed to satisfactorily discharge the burden of the issue under consideration.
This leads us to the other question whether the appellant is the heir of deceased Bachal Shah. The appellant claims to be the daughter of Mirzadi, the only sister of Sidik Shah. This question is covered by issue No. 7. The learned Subordinate Judge has dealt with this question in a most perfunctory manner. He has simply stated that he disbelieves the witnesses produced by the appellant. We will, therefore, consider the evidence produced by the appellant in support of her claim. P. W. Bibi Amu was examined on commission as (Exh. 113‑A). Her state ment about the claim in dispute is most convincing. She is supported by several other witnesses namely P. W: Haji Muhammad Shah (Exh. 118), P. W. Ali Muhammad (Exh. 129), P. W. Usman (Exh. 137) and P. W. Mir Muhammad Shah (Exh. 145). Out of them P. W. Haji Muhammad Shah (Exh: 118) is the head of Sayyed Jamat at Matiari Town, the place where the appellant's mother was married. Thus witness has stated that Bibi Amu is the daughter of Mirzadi and Mirzadi is the daughter of Mangiladho Shah and sister of Bachal Shah. The evidence of this witness is based on the general repute of the appellant in the Sayyed community. The next important witness is Mir Muhammad Shah (Exh. 145). He is the near relative of deceased Bachal Shah and a Sayyed. He has also stated that she is the cousin of Bachal Shah, saw her at Bachal Shah's house and Bachal Shah also visited her at Matiari. We have carefully considered all the evidence produced in support of the appellant's claim and are of the opinion that the evidence of these witnesses, being of the members of the community and relatives of the deceased Bachal Shah, is reliable and has not been impeached or shattered in cross‑examina tion by respondent No. 2. The respondents have not denied that the appellant in the daughter of Mirzadi sister of Sidik Shah but have stated that they are not aware whether Sidik Shah had a sister or that the appellant is the daughter of Mirzadi. This is only a vague denial. On the whole we believe the evidence pro duced by the appellant and hold that Mst. Bibi Amu is the daughter of Mirzadi and that Mirzadi was the sister of Sidik Shah and daughter of Mangiladhoshah. The appellant, therefore, is the sole heir of deceased Bachal Shah.
On the above‑mentioned findings, the only question that remains for consideration is whether Bachal Shah executed a valid Will in favour of respondent No. 1 in respect of the property in dispute. There is no doubt in our minds that on the evidence produced on the record this is fully established. In our opinion the appellant has not been able to show that the Will (Exh. 81) was executed under undue influence of respondent No. 1. P. W. Techchand, scribe of the will and P. W. Shewakram the attesting witness have stated in very clear terms that deceased Bachal Shah at the time of the execution of this Will was in perfect health and sound senses and himself gave instructions for writing the said Will. The only evidence produced by the appellant is that the deceased was not keeping good health and that his mental con dition was not good. The appellant has not produced any evidence about the state of the health and mental condition of the deceased at the time of the execution of the Will. In our opinion Exh. 81 itself coupled with the statement of the scribe and attest ing witness is a complete answer to the vague allegation of the appellant. We are satisfied that at the time of the execution of the Will the deceased was in perfect health and sound mental condition. The very fact that he himself presented the documents for registration at the Sub‑Registrar's office is the strongest piece of evidence in support of the validity of the Will. We, therefore, hold that Exh. 81 is a valid document.
It is a well established principle under the Muhammadan Law l that a Muslim cannot give under a Will more than 1/3 of his property to stranger. Therefore the Will in favour of respondent No. 1 will be valid only to the extent of 1/3 share of the property in dispute. We have already found that the appellant is the legal heir of deceased Bachal Shah at the time of his death. The remaining 2/3 share of the property in dispute will be inherited by her and she is entitled to get that share out of the property in dispute.
Under the circumstances, we will set aside the judgment and decree of the learned Subordinate Judge and declare that I/3 of the, property in dispute belongs to respondent No. 1 and the rest viz., 2/3 belongs to the appellant Mst. Bibi Amu. We will there fore pass a preliminary decree for partition and remand the case to the trial Judge for getting the share of the parties separated by metes and bounds in the estate of deceased Bachal Shah. The learned trial Judge will pass a final decree after partitioning the property in dispute.
For the reasons given above, the appeal is allowed and the claim of the appellant to the extent of 2/3 of the property in dispute is accepted. The respondents are ordered to bear the costs throughout.
K. M. A. Appeal allowed.
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