Mohd. Amin and Others v. Vakil Ahmed and Others.

BHAGWATI J.-This is an appeal from the judgment and decree of the High Court of Judicature at Allaha-bad which set aside a decree passed by the Civil Judge of Azamgarh decreeing the plaintiff's claim.

One Haji Abdur Rahman, hereinafter referred to as "Haji" a Sunni Mohammedan, died on the 26th January, 1940, leaving behind him a large estate. He left him surviving the plaintiffs 1 to 3, his sons, plaintiff 4 his daughter and plaintiff 5 his wife, defen-dant 6 his sister, defendant 7 bis daughter, by a pre-deceased wife Batu! Bibi and defentlants 1 to 4 his neph~ws and defendant 5 his grand-nephew. Plaintiffs I case is that immediately after His death the defen-dant 1 who was the Chairman, Town Area qasba Mubarakpur and a member of the District Boa.rd, 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 the plaintifl's 1 to 4 were not the legitimate children of Haji and that the 1952 plaintiff 5 was not his lawfully wedded wife, that the defendants 1 to 4 set up an oral gift of one-third of the Mohd. Amin-and Others estate in their favour and defendant 5 set up an oral v. will bequeathing one-third share of the estate to him Vakil Ahme~ and sought to interfere with the possession of the and Others. plaintiffs over the estate and nearly stopped all sources of income. It was alleged that under these circum-Bhagwati stances a so-called deed of fam'ily settlement was executed by and between the parties on the 5th April, 1940, embodying an agreement in regard to the dis-tribution 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 the plaintiff 1 who acted as his guardian and exec;uted the deed of settlement for and on his behalf. On these allegations the pla.lntiff filed on the 25th November, 1940, in the Court of Civil Judge of Azamgarh the suit out of which the present appeal arises against the defendants 1 to 5 and defen-dants 6 and 7 for a declaration that the deed of settle-ment dated 5th April, 1940, be held to be invalid and to establish their claim to ith.eir 1legiit'im.ate ~hares in the estate of Haji under Mohammedan law. The defendant 8 a daughter of the plaintiff 5 whose paternity was in dispute was added as a party defen-dant to the suit, the plaintiffs claiming that she was the daughter of the plaintiff 5 by Haji and the defen-dants 1 to 5 alleging that she was a daughter of the plaintiff 5 by her former husband Alimullah.

The only defendaats who contested the claim of the _f plaintiffs were the defendants 1 to 5. They denied that

the plaintiff 5 was the lawfully wedded wife and the plaintiffs 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 tio the estate of Haji and was binding on the plaintiffs.

It is significanlt to observe that the defendants 6 and 7 who were the admitted heirs of Haji did not contest the plaintiff's claim at all.

1952 The two issues which were mafoly contested before

the trial Court were, (1) Whether the plaintiffs 1 to 4 Nohd. Amin are the legitimate issue of and the plaintiff 5 is the

and Others

v. wedded wife of Abdul Rahman deceased ; . l Vakil Ahmed and Others. (2) Whether the agreement dated 5th April,

1940, was executed by the plaintiffs after understand-Bhagwati f. ing its contents fully or was obtained from them by

fraud or undue influence ? Was the said deed insuffi- . ciently stamped? Was it beneficial to the rrunor plaintiffs?

As· regards the first issue there was no document evidencing the marriage between the plaintiff 5 and Haji. The plaintiff 5 and Haji had however lived together as man and wife for 23 to 24 years and the plaintiffs l to 4 were born of that union. There was ·thus a strong· presumption of the marriage of Ha ii with plaintiff 5 huing taken place and of the legiti-macy of plaintiffs 1 to 4. The trial Court did not attach any importance to the question of onus or pre-sumption, examined the evidence which was led by both the pames with a view to come to finding in regard to this issue, and found as follows :

"So far as Musammat Rahima's , marriage with Alimullah or anotl1er Abdul Raliman is concerned the evidence of both the parties stands on the same level and ,,is not worthy of much credit. I have however, r 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 defen-dants' witnesses Shah Allaul Haq and Molvi Iqbal Ahmad ................ Owing 'to the voluminous oral evidence adduced by the plaintiffs and the circum- . ·Stances that , apparently favour them, I gave my best attention to this case, but upon a careful considera-tion of the whole evidence on the record, I am not pre-pared to hold that the plaintiffs 1 to 4 are the legiti-mate issues of the plaintiff No. 5, the lawfully wedded wife of the deceased, Haji Abdul Rahman. I frankly :admit that the matter is not free from difficulty and <loubt but to my mind the scale leans away from the 1952 plaintiffs and I am not satisfied that their version is correct." Mohd. Amin atttl Others v. On the second issue the learned trial Judge came to Vak_il Ahmed the conclusion that the disputed compromise amounted anti Others. to a family settlement; that is was beneficial to the T. interests of the minor plaintiff and that it was made Bhagwati by the par~ie5; :WiUlingly and without any fraud or undue influence. On these findings the suit was dis-missed with costs .

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 defend-ants 1 to 5 'it was held that there was no considera-tion whatsoever which could in any way support the arrangement. Plaintiffs 4 and 5 being Purdanashin i, ladies, it was found that they had no chance at any

stage of the transaction of gettilng ilndependent advice I( in regard to the contents or the affect qf 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 the plaintiff 3 who would be about 9 years of age at the time of the execution of the deed was re:presentied in the transaction by his r brother who could not be tl1e. legal guardian of his I 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 presumptipn in favour of legitimacy and law-ful wedlock under the Mahomedan Law, he would have recorded a finding in their favour. The defendants 1 to 5 had alleged that at the time of the commencement of sexual relations between the plaintiff 5 and Haji, plaintiff 5 was the wife of one Alimu!lah who was I alive and that therefore the connection between the

1952 plaintiff 5 and Haji was "in it:S i>rigin illicit and con-II

tinued as such, with the result that the presumption in Mohd. Amin favour of a marriage between the plaintiff 5 and Haji

antl Others

v. and in favour of the legitimacy of plaintiffs 1 to 4 Vakil Ahmed would_ not arise. The learned trial Judge disbelieved and Others. the evidence led by the defendants 1 to 5 in regard ti>

J. this marriage between the plaintiff 5 and Alimullah. J· Bhagtuati The High Court upheld the finding and said :- "All these circumstances, to my mind, strongly militate against the theory of a first marriage of Musammat Rahima Bibi with the man called Ali-mullah. In this st:a;te of evidence one cannot but hold that this story of the marnage with Alimullah was purely an after-thought on the part of the defend-ants I to 5 and it was invented only to get rid of the strong presumption · under the Mahomedan law in favour of the paternity of plaintiffs I to 4 and the lawful wedlock of the plaintiff 5."

Having thus discredited the theory of the first marriage of the plaintiff 5 with Alimullah the High Court came to the conclusion that it was fully esta-blished that Musarnmat Rahima Bibi was the lawfully wedded wife and that the plaintiffs 1 to 4 are the legitimate children of Haji. The defendants I to 5 obtained leave to appeal to His Majesty in Council and the appeal was admitted on the 10th January, 1947.

Shri S. P. Sinha who appeared for the defendants 1 ,_ to 5 before us has urged the self-same two questions, namely, ( 1) Whether the deed of settlement is binding on the plaintiffs and (2) Whether the plaintiff 5 was the lawfully wedded wife and the plaintiffs I to 4 are the legitimate children of Haji .

. In regard to the first question, it is unnecessary to discuss the evidence in regard to fraud, undue influ-ence, wam of independent advice etc~ as the · question in our opinion is capable of being disposed of on a ~hort point. It is admitted that the plaintiff 3 Ishtiaq Husan was a minor of the age of about 9 years at the date of the deed, and . he was not represented as already stated by any legal guardian in this arrange-1952 ment. The minor's brother had no power to transfer any right or interest in the immovable property of the Mohd. Amin and Others minor and such a transfer if made was void. (See v. r' Mulla's Mahomedan Law, 13th Edition, page 303, Vakil Ahmed

section 364). and Others.

Reference may be made to the decision of their Bhagwati /. l' Lordships of the Privy Council in Imambandi v. Mut-

saddi (1). In that case the mother who was neither the legal guardian of her minor children nor had been ap-pointed their guardian under the Guardian and Wards Act had purported to transfer the shares of her minor children in the property mherited by them from their deceased father. Mr. Ameer Ali who delivered the judgment of the Board observed at page 82 as follows:-

"The question how far, or under what circums-tances according to Mahomedan law, a mother's deal-ings with her minor child's property are binding on the infant has been frequently before the courts in India.

The decisions, however, are by no means uniform, and betray two varying tendenci/es : one set of decisions purports to give such dealings a qualified force; the other declares them wholly VQid and ineffective. In the former class of cases the main test for determining the validity of the particular transaction has been the benefit resulting from it to the minor; in the latter, the admitted absence of authority or power on the part of the mother to ahenate or incumber the minor's property."

The test of benefit resulting from the transaction to the minor was negatived by the Privy Council and it was laid down that under the Mahomedan law a person who has charge of the person or property of a minor without being his legal guardian, and who may, there-fore, be conveniently called a "de-facto guardian," has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant.

(1) (1918) 45 I.A. 73.

18-10 S. c. India/71 1952 Shri · S. P. Sinha relied upon a decision of the Calcutta

High Court reported in Mahomed Keramutullah Mohd. Amin aqt/ Others Miah v. Keramutulta(') wh,ere it was held that there

v. was nothing in the doctrine of family arrangements op-l(.a{il Ah.med posed to the general principle that when it was sought and Others. to bind a minor by an agreement entered into .on Bhagw_ati ], his behalf, it .must ·be shCJ'(>'n that the agreement was

for the benefit of the niinor; that if improper advan-ta~e had been taken of the minor's position, a family arrangement.._ could be set as·1de on the ground of undue ipfluer:c~ or _inequality o~ position or one or other. of the grounds which would v1t1ate such arrangement in the ca~e of adults; but where there \vas no defect of this nattire, the settlement of a •doubtful claim was of as much advantage to a minor as to an adult, and--Wrfere l' genuiri.e dispute ·had been fairly settled the dispute could not be re-opened solely on the ground that one of the parties to •the 'family arrangement was a"minor.

This dedsion was 1 reached .'on the 19th July, 1918, I.e., almost 5 moi=i.ths after the decision of their Lord-ships of the Privy Col!flcil, but it does .not appear that the ruling w~s brought to the notice of the learned Judges qf the. Calcutta High Court. The test of the benefit, resulting from the transacti/on to the minor whiFh was n_egatived, by their Lordships of the Privy ,Q>,Wlcil }Vas applied, i;y th~ learned Judges of the Ga1cutt~ f{igh Ci>1.!_rf in prder to determine wh~ther the f.amily_, aqangeµient }Vhic~ was the subject-matter of the suit before them wa~ binding on the mii).or.

Shri S. P. Sinha next relied upon a decision of the Chief Court of Oudh, Ameer Hasan v. Md. Ejaz HufCiin(2). ' Iri th~t ' ease an agreement to re~er to arbittaiion was l!ntered into .by the 'mother for her hlinor' children ·arid ah' · awatd was made by tlie '.arbitrators. The schc!'me of d~t'.ribution of :pr~ pfrties. promulgated. in the award was followed without agy qbje~iioq whateyer fo,t a long period extending over 14' yea~s :md. proc,eedin¥s . were take~. at the instance ~f i' the minors for recovery of p9~sessmn by actual partl-tion of their shares in the properties. The Court held

(1) A.I.R. 1919 Cal. 218. (2) A.I.R., 1929 Oudh p4. that the reference to arbitration could not be held bind' J9j2 ing on the mmors and the award coulsJ not be' held to Mohd. -Amin be an operative document, but if the scheme of distri-and Othcts bution promulgated in the ~ward was In no way. per-v. verse or unfair on i,nf!uenced by any corruption or Vakjl Ahmed misconduct of the arbitrators and had been followed and 'Others. without any objection whatever for a long period Bhagwati extending over 14 years; it ·w0iiJd as well be recognis-ed as a family settlement and the court would be extremely reluctant to disturb the arrangement arriv5!d at so many years ago. This line of, reasoning was deprecated by their Lordships of the Priry Council in Indian Law 'Reports 19 Lahore 313 at page 317 where their Lordships observed "it is, however, argued that the transactioo should be upheld, because it was a family settlement. Their Lordships cannot assent to the proposition that a party can, by describing a .con, tract as a family settlement, claim for it an exemp-tion from the law governing \he capacity. of a person to make a valid contract." 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 propei;ly represented in tl;i.e transaction can be rehabilitated by the adoption of any such line ,of reasoning.

If the deed of settlement was thus .void it could not be vo'd only qua the minor Plaintiff 3 but would be void .al.together 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.

The contention of the defendants 1 to 5 in regard· to the lawful weolock between plainfiff . 5 and Haji and the legitimacy of the plai11tiffs 1 to 4 is equally untenable. The plaintiffs had no Cloubt to prove that the plaintiff 5 was the lawfully wedded wife and· the plaintiffs l to 4 were the legitimate children of Haji.

Both the COurts found that the factun1 of the marriage was not proved and the plaintiffs .Ii.ad therefore of necc:Ssity· to fall back upon the presnmption of marriage arising in Mahoniedan law. If that presump-tion of mqrri;ig\: arose, there would be no difficulty· -in 1952 establishing the status of the Plaintiffs l to 4 as the

legitimate children of Haji because they were admit-Mohd. Amin tedly born by the plaintiff 5 to Haji. The presumption and Others

v. of marriage arises in Mahomedan law in the absence Vakil Ahmed of direct proof from a prolonged and oontinual cohabi-a;id Others. tation as husband and wife. It will be apposite in Bhagwatl /. this connection to refer to a passage from the judgment

of their Lordships of the Privy Council in Khajah Hidayut Oollah v. Rai fan Khanum (' ). Their Lord-ships there quoted a passage from Macnaghten's Principles of Mahomedan Law:-

"The Mahomedan Lawyers carry this disinclination (that is against bastardizing) much further; they consider it legitimate of reasoning no infer the exist-ence of marriage from the proof of cohabitation.· ...... . None but children who are in the strictest sense of the word spurious. are considered incapable of inheriliing the estate of their putative father. The evidence of per-sons, who would, in other cases, be considered incom-petent witnesses is admitted to prove wedlock, and, in short, where by any possibility a marriage may be presumed, the law w'1ll rather do so than bastardize the issue, and whether a marriage be simply voidable or void ab initio the offspring of it will be deemed legitimate ...................... This I apprehend, with all due deference, is carrying the doctrine to an extent unwarranted by law; for where children are not born of women proved to be married to their father, or of female slaves to their fathers, some kind of evidence (however slight) is requisite to form a presumption of matrimony .................................. The mere fact of casual concubinage is not sufficient to establish legitimacy; and if there be proved to have existed any in insurmountable obstacle to the marriage of their puta-tive father with their mother, the children, though not born of common women, will be considered bastards to all intents and purposes."

Their Lordships deduced from this Passage the principle that where a child had been born to a father, of a mother where there had been not a mere casual

(I) (1844) 3 Moore's Indian Appeals 295 at P. 317.

concubinage, but a more permanent connection, and 1952 where there was no insurmountable obstacle to such a marriage, then according to the Mahomedan Law, Mohd. Ami1' and Others the presumption was in favour of such marriage having v. taken place. Vakil Ahmed

The presumption m favour of a lawful marriage and Others. would thus arise where there was prolonged and con-Bhagwati tinued cohabitation as husband and wife and where there was no insurmountable obstacle to such a marriage, e.g., prohibited relationship between the parties, the woman being an undivorced wife of a husband who was alive and the like. Further illus-trations are to be found in the decisions of their Lord-ships of the Privy Council in 21 Indian Appeals 56 and 37 Indian Appeals 105 where it was laid down that the presumption does not apply Vf the conduct of the parties was incompatible with the existence of the relation of husband and wife nor did it apply if the woman was admittedly a prostitute before she was brought to the man's house (see Mulla's Maho-medan Law, p. 238, section 268). If therefore there was no insurmountable obsQacle to such a marriage and the man and woman had cohabited with each other continuously and for a prolonged period the pre-sumption of lawful marriage would arise and it would be sufficient to establish that there was a lawful mar-riage between them.

The plaintiff 5 and Haji had been living as man and wife for 23 to 24 yearn openly and to the knowledge of all their relations and friends. The plaintiffs I to 4 were the children born to them. The plaintiff 5, Haji, and the children were all staying in the family house and all the relations including the defendant 1 him-self treated the plaintiff 5 as a wife of Haji and the plaintiffs 1 to 4 as his children. There was thus sufficient evidence of habit and repute. Haji more-over purchased a house and got the sale deed executed in the names of the plaintiffs I and 2 who were des-cribed therein as his sons. The evidence which was led by the defendants 1 to 5 to the contrary was dis.- carded by the High Court as of a negative character 19-10 s. a. India/71 1952 and of no value. Even when the deed of settlement was

executed between the parties the plaintiff 5 was des-Mohd. Amin cribed as the widow and plaintiffs 1 to 4 were described and Others

v. as the children of Haji. All these circumstances raised Vakil Ahmed the presumption that the plaintiff 5 was the lawfully and Others. wedded wife and the plaintiffs 1 to 4 were the legiti-

/. mate children of Haji.

Bhagwati

The result therefore is that both the contentions urged by rhe defendants l to 5 against the plaintiffs' claim in suit fail and the decree passed in favour of the plaintiffs by the High Court must be affirmed.

It was however pointed out by Shri S. P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression "awarding passession and occupation of the property aforesaid together . with all the rights appertaining thereto." We are 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. We dismiss the appeal of the defendants l to 5 and affirm the decree passed by the High Coutt in favour of the plaintiffs, deleting therefrom the' provision in regard to mesne profits. The plaintiffs will of course be entitled to their costs throughout from the defendants l to 5.

Appeal dismissed. Agent for the appellants: V.P.K. Nambiyar.

Agent for the respondents: B. P. Maheshwari.

END OF VoL. III.