Case: MOHAMMED SALIM (D) THROUGH LRS Vs. SHAMSUDEEN (DEAD) THROUGH LRS

2. The facts leading to this appeal are that a suit for partition and possession of 14/16 th share in the Plaint Schedule ‘A? property and half the rights over Plaint Schedule ‘B? property was filed by the Respondent No. 1 herein (original plaintiff). Defendant No. 1 in the suit, Mohammed Idris, is the brother of Mohammed Ilias, the father of the plaintiff, andDefendant Nos. 2 to 7 are the children of Mohammed Idris.Both the plaintiff?s father and Defendant No. 1 are the sons of Zainam Beevi, who expired in 1955. Both Plaint properties belonged to her. Plaint Schedule ‘A? property was gifted to Mohammed Ilias, based on a gift deed executed by Zainam Beevi.The case of the plaintiff is that Defendant No. 8 namely Saidat, was the first wife of Mohammed Ilias, and no issue was born out of the said wedlock. Thereafter, Mohammed Ilias married Valliamma in 1120 M.E. (as per the Malayalam Calendar, which corresponds to 1945 AD in the Gregorian system). Valliamma was a Hindu at the time of her marriage with Mohammed Ilias. Both Mohammed Ilias and Valliamma lived together as husband and wife at Thiruvananthapuram. Later, Valliamma was renamed Souda Beebi. Out of the said wedlock, Shamsudeen (the plaintiff) was born. Subsequent to the death of Mohammed Ilias in 1947 AD, Valliamma (Souda Beebi) married Aliyarkunju.The plaintiff claimed that he was the only son of Mohammed Ilias and on his death, he became entitled to 14/16 th of the share in Schedule ‘A? property. He also claimed half the share in Schedule ‘B? property through inheritance after the demise of Zainam Beevi, as the same would have devolved upon the plaintiff, being the son of the predeceased son of Zainam Beevi, and Mohammed Idris, Defendant No. 1, being the only surviving son of Zainam Beevi. Hence, the suit was filed.It is the case of the defendants that Valliamma was not the legally wedded wife of Mohammed Ilias and that she was a Hindu by religion at the time of marriage. She had not converted to Islam at the time of her marriage, and thus the plaintiff being the son of Valliamma, is not entitled to any share in the property of Mohammed Ilias. It is their further case that Mohammed Ilias had died two years prior to the birth of the plaintiff.As mentioned supra, the trial Court decreed the suit and the first appellate Court allowed the appeal and dismissed the suit by setting aside the judgment and decree of the trial Court. However, the High Court by the impugned judgment set aside the judgment passed by the first appellate Court and confirmed the judgment and decree passed by the trial Court. Hence, the instant appeal was filed by the original defendants and the legal representatives of those among them who have since died.

Reasoning: 7. It is also not in dispute that Defendant No. 8, Saidat is the widow (first wife) of Mohammed Ilias. She has clearly admitted in her written statement that Mohammed Ilias married Valliamma, Defendant No. 9, and out of the said wedlock, the plaintiff was born. Exhibit A3 is the birth register extract of the plaintiff maintained by the statutory authorities, which indicates that the plaintiff is the son of Mohammed Ilias and Valliamma. It is a public document.An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law in accordance with which suchbook, register or record is kept, is itself a relevant fact, as per section 35 of the Indian Evidence Act, 1872.Exhibit A3 being a public document is relevant to resolve the dispute at hand.Additionally, a specific pleading was found in the plaint that Mohammed Ilias and Valliamma were living together as husband and wife in House No. T.C.13 of Poojappura Ward in Thiruvananthapuram, which has not been denied in the written statement of the defendants.As per Exhibit A3 mentioned above, the plaintiff was born on 01.07.1124 M.E. (12.02.1949 as per the Gregorian Calendar) and the same has not been seriously disputed. Admittedly, Mohammed Ilias died on 10.09.1124 M.E. The said date corresponds to 22.04.1949 in the Gregorian Calendar, as seen from the Government Almanac, which cannot be disputed inasmuch as it is a public record maintained by the Trivandrum Public Library (Government of Kerala). Thus, it can be concluded that the plaintiff was born two months prior to the death of Mohammed Ilias.Under these circumstances, in our considered opinion, the Trial Courtand the High Court were justified inconcluding, based on the preponderance of probabilities, that Valliamma was the legally wedded wife of Mohammed Ilias, and the plaintiff was the child born out of the said wedlock.The High Court, in our considered opinion, was also justified in concluding that though the plaintiff was born out of a fasid (irregular) marriage, he cannot be termed as an illegitimate son of Mohammed Ilias.On the contrary, he is the legitimate son of Mohammed Ilias, and consequently is entitled to inherit the shares claimed in the estate of his father.Evidently, Muslim law clearly distinguishes between a valid marriage (sahih), void marriage (batil), and invalid/irregular marriage (fasid). Thus, it cannot be stated that a) marriage and a fasid (invalid/irregular) marriage are one and the same. The effect of a) marriage is that it is voidnd does not create any civil right or obligations between the parties. So also, the offspring of a void marriage are illegitimate (§ 205A of the 6 th and 8 th editions and §§ 205A of the 10 th edition, and 266 of the 18 th edition of Mulla).Therefore, the High Court correctly concluded that the marriage of Defendant No. 9 with Mohammed Ilias cannot be held to be a batil marriage but only a fasid marriage.Thus, based on the above consistent view, we conclude that the marriage of a Muslim man with an idolater or fire-worshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage. Any child born out of such wedlock (fasidmarriage) is entitled to claim a share in his father?s property. It would not be out of place to emphasise at this juncture that since Hindus are idol worshippers, which includes worship of physical images/statues through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid) marriage.