Haji Saboo Sidick and Others vs Ayeshhabai and another

Robertson, J. 1. The respondents were the plaintiffs in a suit brought to assert their rights as one of the widows and a daughter, respectively, of one Haji Haroon Sidiok, a merchant of Bombay, who died on 20th December, 1898. The plaint was filed on 30th September, 1899. It originally raised, inter alia, the question whether Haji Haroon Sidick died intestate, but it is not now disputed that he left a will, under which the appellants, other than Fatmabai, are the executors. Fatmabai is admittedly a widow of the deceased. The appellants on 24th November, 1899, filed a joint written abatement, and issues were settled on 18th June, 1900. 2. The main question raised by the plaint was whether the deceased had entered into a nika marriage with the respondent Ayeshabai. This was keenly disputed, the case of the appellants being that at the alleged marriage ceremony the deceased had been personated. On this pare question of fact there are concurrent judgments in favour of the respondents; and accordingly their Lordships have not been invited to reconsider its merits. The appellants confined their argument to four matters, the first of which is, in truth, inseparable from the merits:

At the trial it was proved that the deceased had executed a will, after the alleged marriage, and in it there was no mention made of either of the respondents. So far as it goes, this is an item of evidence against the marriage having taken place; but, at best, it is only an item more or less cogent, and its cogency must depend on whether the circumstances of the marriage made it natural that the wife should be an object of the husband''s testamentary bounty and improbable that he should have left her to depend on her legal right to maintenance. In the present instance the Courts below have thought that the circumstances of this marriage made it not unlikely that the testator should take the latter course. It is obvious not only that this is a very tenable view of the question, taken by itself, but also that the point raised by the appellants could only be made anything of by weighing it in relation to the whole evidence on which the Courts below have concurrently preferred the respondents'' contention. 2. A draft of the will, also containing no mention of the respondents, was tendered in evidence, apparently as of itself furnishing similar evidence to that afforded by the will. This draft, however, was written not by the testator but by another person, and in their Lordships'' judgment it was rightly rejected. This was not a written statement made by the deceased. 3. At the trial, questions were put and disallowed, which went to show that Ayeshabai had been unchaste after the death of her husband and had thus (as the appellants contended) disentitled herself to maintenance. On the record as it stood, the appellants had neither averment nor issue of such unchastity, and all that they could point to was their denial that "the plaintiffs" were entitled to maintenance, and the fifth issue, whether "the plaintiffs are entitled in any event to maintenance or marriage expenses." It is manifest that those general words, equally applicable to mother and child, are entirely unsuitable for the statement of the specific fact of incontinence on the part of the mother, and the words of the fifth issue are in fact an echo of the plaintiffs'' own pleading. 3. The appellants sought to better their position by applying for leave formally to raise the issue whether, in the event of the plaintiff Ayeshabai being entitled to maintenance from the date of the deoeaaed''8 death, she has not forfeited such right by unchastity; and, on this application being refused, the appellants applied for leave to file a supplemental written statement raising the question of unchastity. Both applications were refused. Both were made after the plaintiffs'' case was closed. It appears to their Lordships that it was out of the question that, after the plaintiffs'' case was closed, this new averment should be made, necessitating as it did the opening up of the whole case, without any suggestion that the facts relied on had newly come to the knowledge< of the appellants and had before been excuseably unknown to them. 4. The proposal that this matter should now be re-opened is the more unreasonable as the decree appealed against contains a dumcasta clause. 4. The only other point was as to the amount of aliment. No cause whatever has been shown for interfering with the careful decision immediately under review, which modified the decree of the Judge of first instance. 5. Their Lordships will humbly advise His Majesty that the appeal ought to be dismissed. The appellants must pay the costs of the appeal.