Mahabub Nissa Begum and Others vs Mahomed Yusuff and Others

Srinivasa Chari, J.—This revision solely relates to the question as to whether the petitioner is the son of one Ghulam Khadir, a contractor of Secunderabad. These proceedings arose out of a suit filed by Ghulam Khadir for the taking of the accounts of a dissolved partnership against one Abdul Karim. Ghulam Khadir died on 15th November 1945 and the respondent Mahomad Yusuff filed an application for being brought on record as the legal representative of Ghulam Khadir. He said that Ghulam Khadir left him surviving a son and four daughters as his heirs and legal representatives. The daughters of Ghulam Khadir who are the petitioners before us denied that the respondent Mahomad Yusuff was the legitimate son of Ghulam Khadir and they alleged that he was only a ''parwarda'' foster-son. There having been dispute as to whether Mahomed Yusuff was the legal representative of Ghulam Khadir, the Court framed an issue and took evidence for and against. The parties filed documents and also examined witnesses and on the documentary and oral evidence the Court below came to the conclusion that Mahomed Yusuff had proved that he was the son of Ghulam Khadir by Farkhunda Begum. Against this order of the Sessions Judge, Secunderabad, this revision has been filed by the daughters.

Ordinarily, we would not have gone into, the question in this revision as to who is the legal representative of Ghulam Khadir but would have allowed it to be agitated in a regular suit but the proceedings relating to the decision about the legal representative of the plaintiff in the suit itself, have dragged their weary length any have taken nearly four years. So we allowed the respective advocates to argue at length on the evidence.

3-5. Ghulam Khadir married five wives and the respondent before us alleges that he is the son by the first wife farkhunda Begum. Petitioners 1 and 2 are the daughters of Ghulam Khadir by his second wife and petitioners 3 and 4 are the daughters of his third wife. In support of his case that he is the legitimate son of Ghulam Khadir, the respondent Mahomed Yusuff filed in the Court below the following documents: (1) A deed of partnership between him and one Kokul Narayana; (2) copies of certain plaints; (the entries in the suit register were exhibited, as the plaints had been destroyed); (3) a power of attorney executed in favour of Ghulam Khadir by his sister. In addition to the above documents he examined on his behalf two advocates of the Secunderabad Court, Messrs. Ramaswamy Aiyangar and Venkata Char, (3) Narayana who was a partner with him in a contract business, Saheb-Zada Mahomed Bashiruddin and Ghulam Mushtafa. By way of rebuttal the daughters filed the marriage certificate of Mahomed Yusuff with one Azizun-nissa and the marriage certificate relating to his second marriage. They also filed four letters said to have been written by his first wife. (His Lordship considered the evidence and proceeded.) The oral evidence and the documentary evidence led on behalf of the respondent amounts to this that Ghulam Khadir used to Call the respondent his son, that Mahomed Yusuff was joined as a plaintiff in suits filed by Ghulam Khadir. We have to consider whether this evidence is enough to establish the fact that Mahomed Yusuff is the son of Ghulam Khadir. No doubt if from the evidence of the daughters it could be concluded that he could not be the son of Ghulam Khadir then any amount of acknowledgment by the father cannot make Mahomed Yusuff the legitimate son of Ghulam Khadir.

The law is clear on the point. The respondent must establish an acknowledgment in the Sense of a dear intention on the part of his alleged father to confer legitimacy on him. As was observed by their Lordships of the Privy Council,

An acknowledgment must be made in such a way that it shows that the acknowledges intended to accept the other not only as his son but as his legitimate son" (Vide Habibur Rahman v. Altaf Ali AIR 1922 P.C. 159.

In Mohamed Azmat Ali Khan v. Lalli Begum 8 Cal. 422, from the various acts of the father which were proved in the case, the Privy Council held that it was established that he treated the boy as a legitimate son. Some of those acts were (a) the boy was taken by his father to respectable persons, and was introduced to them as his son, (b) he was going about mounted on an elephant, (c) the Bismilla ceremony was performed by him and attended by the highest officials of the place, Warburton and Major Persons. Under the above circumstances their Lordships observed "It is Scarcely conceivable that this would have been performed if he was illegitimate".

In Habibur Rahman v. Altab Ali AIR 1922 P.C. 159 their Lordships came to the conclusion that the son was legitimate, evidenced by the treatment which consisted of (a) the father''s name of the boy being entered in the school register as the Nawab, (b) and in the letter to the officials, the boy being referred to as his son by the Nawab [b] No doubt from the treatment accorded to a person acknowledgment might be presumed, but whether such acknowledgment should be presumed must depend on the particular facts and circumstances of each case.

As observed above, the statements of Narayana and of Venkata Char only go to this extent, that these witnesses speak about Ghulam Khadir tolling them that the respondent (Mahomed Yusuff) was his son. But one factor cannot be lost sight of that no statement made by one man that Anr. (proved to be illegitimate) is his son can make that other legitimate. The petitioners have led evidence of relations who come and swear that Mahomed Yusuff was only a ''parwarda'' (Hero his Lordship narrated the evidence). Where doubt is thrown on the (legitimacy of to person it is upon him to prove by substantial irrefutable evidence that he was ''treated by the father as a legitimate son. We find in this case that the plaintiff has not gone into the box. It was argued that there was no matter which was within the personal knowledge of the plain till and so the question of going into the box and deposing to matters within his personal knowledge did not arise. We are unable to agree with this argument. The plaintiff, we are of opinion, was in a position to give instances of the various acts of Ghulam Khadir which wont to establish that ho (the plaintiff) was treated as a legitimate son,

One or two matters to which our attention was drawn, also go to make the case of the respondent; weak. It is on record that Mahomed Yusuff was not present when his father was ill or when he died. We would not expect a legitimate son to be away when the father died. The petitioners before us, applied for succession certificate in respect of some of the debts due to the estate of the late Ghulam Khadir and in these proceedings, Mahomed Yusuff the respondent appeared and objected to the grant of the certificate, but he did not choose to pursue the -action bat absented himself and the petitioners were granted succession certificate. Although by his not contesting these proceedings he would not be precluded from showing in a regular suit that he was the legitimate son of Ghulam Khadir, surely this conduct, taken with the other evidence on record would strongly go to improbably the case set up by him.

We are therefore of opinion that this revision should be allowed. The order of the lower Court is sot aside. Petitioners are permitted to be brought on record as legal representatives of the plaintiff in the suit. Case is remanded to the lower Court for further proceedings. As there has been an inordinately long delay in the L.B. Proceedings, we direct the lower Court to fix a date for hearing in the original suit within a month from the date of the receipt of this file and we expect the Court to go on with the cases from day to day. The petitioners would be entitled to recover the costs of this revision from the respondent. Advocate''s fee Rs. 50.

Siddiqi, J.

I agree.