Case: Mohd. Amin And Others Vs. Vakil Ahmed And Others

2. One Haji Abdur Rahman, hereinafter referred to as "Haji" a Sunni Mohammedan, died on 26-1-1940 leaving behind him a large estate. He left him surviving plaintiffs 1 to 3, his sons plaintiff 4 his daughter and plaintiff 5 his wife, defendant 6 his sister, defendant 7 his daughter by a pre-deceased wife Batul Bibi and defendants 1 to 4 his nephews and defendant 5 his grandnephew. Plaintiffs case is that immediately after his death defendant 1 who was the Chairman, Town Area qasba Mubarkpur and a member of the District Board, Azamgarh and defendant 5 who was an old associate of his, started propaganda against them that they set afloat a rumour to the effect that plaintiffs 1 to 4 were not the legitimate children of Haji and that plaintiff 5 was not his lawfully wedded wife, that defendants 1 to 4 set up an oral gift of one-third of the estate in their favour and defendant 5 set up an oral will bequeathing one-third share of the estate to him and sought to interfere with the possession of the plaintiffs over the estate and nearly stopped all sources of income. It was alleged that under these circumstances a so-called deed of family settlement was executed by and between the parties one 5-4-1940 embodying an agreement in regard to the distribution of the properties belonging to the estate, that plaintiff 3 was a minor of the age of about 9 years and he was represented by plaintiff 1 who acted as; his guardian and executed the deed of settlement for and on his behalf. On these allegations the plaintiffs filed on 25-11-1940 in the Court of Civil Judge of Azamgarh the suit out of which the present appeal arises against defendants 1 to 5 and defendants 6 to 7 for a declaration that the deed of settlement dated 5-4-1940 be held to be invalid and to establish their claim to their legitimate shares in the estate of Haji under Mohammedan Law. Defendant 8 a daughter of plaintiff 5 whose paternity was in dispute was added as a party defendant to the suit, the plaintiffs claiming that she was the daughter of plaintiff 5 by Haji and defendants 1 to 5 alleging that she was a daughter of plaintiff 5 by her former husband Alimullah.The only defendants who contested the claim of the plaintiff were defendants 4They denied that plaintiff 5 was the lawfully wedded wife and plaintiff 1 to 4 were the legitimate children of Haji. They also contended that the deed of settlement embodied the terms of a family settlement which had been bona fide arrived at between the parties in regard to the disputed claims to the estate of Haji and was binding on the plaintiffs.It is significant to observe that defendants 6 to 7 who were the admitted heirs of Haji did not contest the plaintiffs claim at all.The two issues which were mainly contested before the trial Court were, (1) Whether plaintiffs 1 to 4 are the legitimate issues of, and plaintiff 6 is the wedded wife of Abdul Rahman deceased;(2) Whether the agreement dated 5-4-1940 was executed by the plaintiffs after understanding its contents fully or was obtained from them by fraud or undue influence ? Was the said deed insufficiently stamped ? Was it beneficial to the minor plaintiffs ?6. As regards the first issue there was no document evidencing the marriage between plaintiff 5 and Haji. Plaintiff 5 and Haji had however lived, together as man and wife for 23 to 24 years and plaintiffs 1 to 4 were born of that union. There was thus a strong presumption of the marriage of Haji with plaintiff 5 having taken place and of the legitimacy of plaintiffs 1The trial Court did not attach any importance to the question of onus or presumption, examined the evidence which was led by both the parties with a view to come to a finding in regard to this issue, and found as followsfar as Mt. Rahimas marriage with Alimullah or another Abdul Rahman is concerned the evidence of both the parties stands on the same level and is not worthy of much credit. I have, however, not the least hesitation to observe that so far as the oral evidence and the circumstances of the case are concerned, they all favour the plaintiffs. I, however, find it difficult to ignore the testimony of the defendants witnesses Shah Allaul Haq and Molvi Iqbal Ahmad........... Owing to the voluminous oral evidence adduced by the plaintiffs and the circumstances that apparently favour them, I gave my best attention to this case, but upon a careful consideration of the whole evidence on the record, I am not prepared to hold that plaintiffs 1 to 4 are the legitimate issues of plaintiff 5 the lawfully wedded wife of the deceased, Haji Abdul Rahman. I frankly admit that the matter is not free from difficulty and doubt but to my mind the scale leans away from the plaintiffs and I am not satisfied that their version isthe second issue the learned trial Judge came to the conclusion that the disputed compromise amounted to a family settlement; that it was beneficial to the interests of the minor plaintiff and that it was made by the parties willingly and without any fraud or undue influence. On these findings the suit was dismissed with costs.7. The plaintiffs filed an appeal to the High Court of Judicature at Allahabad. After considering the several authorities on the binding nature of family settlements cited before it, it came to the conclusion that it did not bind the plaintiffs. As regards defendants 1 to 5 it was held that there was no consideration whatsoever which could in any way support the arrangement. Plaintiffs 4 and 5 being Purdauashin ladies, it was found that they had no chance at any stage of the transaction of getting independent advice in regard to the contents or the effect of the document which they were executing and that even if the deed were valid otherwise it would not be binding on them. It was further held that plaintiff 3 who would be about 9 years of age at the time of the execution of the deed was represented in the transaction by his brother who could not be the legal guardian of his property and that the deed in so far as it adversely affected the interest of plaintiff 3 would not be binding on him. On the question of marriage and legitimacy, the High Court came to the conclusion that if the trial Court had considered the question of onus in its proper light and given the plaintiffs the benefit of the initial presumption in favour of legitimacy and lawful wedlock under the Mohamedan Law, he would have recorded a finding in their favour. Defendants 1 to 5 had alleged that at the time of the commencement of sexual relation between plaintiff 5 and Haji, plaintiff 5 was the wife of one Alimullah who was alive and that, therefore, the connection between plaintiff 5 and Haji was in its origin illicit and continued as such, with the result that the presumption in favour of a marriage between plaintiff 5 and Haji and in favour of the legitimacy of plaintiffs 1 to 4 would not arise. The learned trial Judge disbelieved the evidence led by defendants 1 to 5 in regard to this marriage between plaintiff 5 and Alimullah. The High Court upheld the finding and saidthese circumstances, to my mind, strongly militate against the theory of a first marriage of Mt. Rahima Bibi with the man called Alimullah. In this state of the evidence one cannot but hold that this story of the marriage with Alimullah was purely an after-thought on the part of defendants 1 to 5 and it was invented only to get rid of the strong presumption under the Mohamedan Law in favour of the paternity of plaintiffs 1 to 4 and the lawful wedlock of plaintiffthus discredited the theory of the first marriage of plaintiff 5 with Alimullah the High Court came to the conclusion that it was fully established that Mt. Rahima Bibi was the lawfully wedded wife and that plaintiffs 1 to 4 are the legitimate children of Haji. Defendants 1 to 5 obtained leave to appeal to His Majesty in Council and the appeal was admitted on 10-1-1947.

Reasoning: 14. We are, therefore, unable to accept this case as an authority for the proposition that a deed of settlement which is void by reason of the minor not having been properly represented in the transaction can be rehabilitated by the adoption of any such line of reasoning.15. If the deed of settlement was thus void, it could not be void only qua the minor plaintiff 3 but would be void altogether qua all the parties including those who were sui juris. This position could not be and was not as a matter of fact contested before us.16. The contention of defendants 1 to 5 in regard to the lawful wedlock between plaintiff 5 and Haji and the legitimacy of plaintiffs 1 to 4 was equally untenable. The plaintiffs had no doubt to prove that plaintiff 5 was the lawfully wedded wife and plaintiffs 1 to 4 were the legitimate children of Haji. Both the Courts found that the factum of the marriage was not proved and the plaintiffs had, therefore, of necessity to fall back upon the presumption of marriage arising in Mahomedan Law. If that presumption of marriage arose, there would be no difficulty in establishing the status of plaintiffs 1 to 4 as the legitimate children of Haji because they were admittedly born by plaintiff 5 to Haji. The presumption of marriage arises in Mahomedan Law in the absence of direct proof from a prolonged and continual cohabitation as husband and wife.The result therefore is that both the contentions urged by defendants 1 to 5 against the plaintiffs claim in suit fail and the decree passed in favour of the plaintiffs by the High Court must beare afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to be deleted from the decree.