1918 (2) TMI 2 - HC - Indian Laws

Summary

Issues Involved:
1. Legitimacy of Zohra's marriage to Ismail Ali Khan and the legitimacy of her children.
2. The admissibility and reliability of the bahis (account-books) as evidence.
3. The legal presumption arising from acknowledgment of children under Mahomedan law.
4. The validity of the sale of minors' shares by Zohra, their mother, under Mahomedan law.
5. The powers of de facto guardians under Mahomedan law.

Issue-wise Detailed Analysis:

1. Legitimacy of Zohra's Marriage and Her Children:
The plaintiffs claimed that Zohra was one of Ismail Ali Khan's lawfully wedded wives and that her children were his legitimate issue. The contesting defendants denied this, arguing that Zohra was not married to Ismail Ali Khan and that her children were illegitimate. The Revenue Courts had previously rejected Zohra's claim, and the Subordinate Judge and the High Court also examined this issue. The oral testimony regarding the solemnization of the marriage was found unsatisfactory, but the acknowledgment of Zohra's children by Ismail Ali Khan was deemed credible. The judgment states, "The legal presumption arising in favour of Zohra from the acknowledgment of the children is not displaced by the mere inference the defendants seek to draw from the absence of entries in her favour in Ismail Ali Khan's account-books."

2. Admissibility and Reliability of the Bahis:
The bahis were account-books that contained entries of payments made by Ismail Ali Khan to his admitted wives but had no entries for Zohra. The plaintiffs initially failed to secure a summons for these books, but they were later produced by the defendants. The trial judge and the High Court were impressed by the absence of entries in Zohra's name, which led to doubts about her status as a wife. However, the judgment criticized this approach, stating, "The true criterion for the determination of the question at issue was missed by both the Courts." The bahis were ultimately deemed unreliable by the Subordinate Judge, who then focused on the oral testimony.

3. Legal Presumption from Acknowledgment of Children:
Under Mahomedan law, acknowledgment of children can create a presumption of marriage. The judgment refers to the rule expressed in Mahatala Bibee v. Prince Ahmed Hahem-ooz-Zaman, stating, "Clear evidence of a reliable character regarding his acknowledgment of her children" was found. This acknowledgment was sufficient to establish the legitimacy of Zohra's children and her status as a wife.

4. Validity of the Sale of Minors' Shares:
The plaintiffs sought possession of shares purchased from Zohra, including shares of her minor children. The High Court overruled the defendants' objection that Zohra had no power to convey her children's interest, but the Privy Council disagreed. The judgment states, "The question is whether they have acquired any title to the infants' shares under the sale by the mother." It was concluded that Zohra had no authority to sell her minor children's shares, making the sale invalid.

5. Powers of De Facto Guardians:
The judgment extensively discusses the powers of de facto guardians under Mahomedan law. It clarifies that a mother, not being a legal guardian, has no authority to deal with her minor child's property. The judgment states, "A person who has charge of the person or property of a minor without being his legal guardian... has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant." This principle was applied to invalidate the sale of the minors' shares by Zohra.

Conclusion:
The Privy Council concluded that Zohra and her children were entitled to their legal shares in Ismail Ali Khan's inheritance. However, the sale of the minors' shares by Zohra was invalid. The decree of the High Court was modified to exclude the possession of the minors' shares from the plaintiffs, affirming the rest of the decree. The judgment also emphasized the importance of adhering to Mahomedan law principles and criticized the practice of referring to foreign decisions in Indian courts.