1. SHAFIUR RAHMAN, J.-Leave to appeal was granted in the two appeals to one and the same contesting party to examine the following questions of law : -
(i) Whether there was any kind of marriage between Mst. Malan and Raja Nehal Singh. If so, whether it was valid under Muslim Law ?
(ii) Alternatively, if no such marriage is proved or any such marriage is otherwise void, whether children of any such union inherit from or through their parents or either of them ?
(iii) Whether in the absence of a definite proof, can there be any legal presumption that Nasir A.I Khan because of his younger years survived his father ?
(iv) Whether the learned Single Judge was right to resolve in exercise of writ jurisdiction of the High Court the conflict of decisions by the Claims Organization and the Settlement Organization, instead of remitting the case to the relevant Authorities for a decision on merits, after explaining the true legal position bearing on the two cases ?
2. The following pedigree table established relationship of the parties-- Mst. Malan (Mother)
3. Mian Sandhi KhanSardar Nabi Bakhsh Akbar A.I Khan Mst. Fazlun NisaAsghar A.I Khan Nasir AliMst. Rashid QamarMst. Nazir KhanSultanaAkhtar Safdar Alimst. GhulamArshad AliMst. IqbalMst. Farakh KhanKubraKhanBegumSultana GhazanfarLiaqat AliArshad AliMst.IqbalMst Bashir A.I KhanKhanKhanBegumAkthtar Akbar A.I the predecessor-in-interest of the appellants in C, A. No. 94 of 1974 and Asghar A.I, the predecessor-in-interest of the contesting respondents in the same appeal, left extensive agricultural land and urban immovable property in Kapurthala State of India. Asghar A.I and his son Nasir A.I died during the disturbances, according to the appellants on the same day in the same roit, but according to the respondents Nasir A.I died after the death of Asghar A.I. For the landed rural property left by Asghar A.I and his son Nasir A.I claim forms (Nos. 270, 263, 235, 254, 262, 266, 273, 258, 269 and 261) were submitted by the two daughters of Asghar A.I, which were verified for 3290 kanals. The allotment was made in the name of Asghar A.I Khan in 1953 in village Ramkot, Tehsil and District Lahore. Some units were transferred and allotments made in Chaks 65j13 and 68/12, Tehsil Nankana, District Sheikhupura. In Lahore District mutations of inheritance were attested according to Shariat in favour of the widow, the two daughters and the deceased son of Asghar A.I. The mutation was reviewed on the request of Akbar A.I and attested under custom in favour of his deceased son Nasir A.I Khan alone. In this manner from the inheritance of Nasir A.I Khan Akbar A.I obtained 1/6th, 2/3 going to his two sisters and 1/6 to his mother. The appeal and revision of the two sisters of Nasir A.I Khan did not succeed against it. They filed a civil suit but the plaint was returned and that order was maintained in appeal and revision. Sub--sequently, on the basis of mutations in Lahore District, the allotments and inheritance of Asghar A.I in Sheikhupura District were also reviewed and brought I n conformity. This was challenged by the sisters of Nasir A.I Khan by a Constitutional Petition (W. P. 29I-R/72).
4. As regards the urban immovable property left by Asghar A.I Khan two sets of claim forms were filed. Akbar A.I claimed one-sixth as residuary in Gujranwala. The two daughters claimed 2/3 in Lahore. The proceedings were ordered to be consolidated, and on the urban claims side came to be finally decided by Additional Claims Commissioner who on the basis of presumptions with regard to survivorship held that Asghar A.I Khan died prior to the death of Nasir A.I Khan, and as such the last male owner was Nasir A.I Khan and not Asghar A.I Khan. Nabi Bux the father of Asghar A.I, and Sandhi Khan the father of Akbar A.I were held to be not full brothers but from the same mother and so not entitled to inherit each other. The exact finding being as follows :- "The family tree, as indicated earlier. Indicates that Nabi Bakhsh and Sandhi Khan were sons of Nihal Singh. All the witnesses, however, are clear that the mother of Sandhi Khan and Nabi Bakhsh was Mst. Malan, a Muslim maid-servant, as a keep of Nihal Singh, copy of Gazetteer has also been filed to indicate heirs of Nihal Singh and in that these two persons have not been men--tioned as sons of Nihal Singh. It is also clear that Nihal Singh did not recognize them as his valid heirs and that they were not given the usual allowances, which are admissible to the heirs. No legal marriage between Nihal Singh and Mst. Malan has been established. According to Muslim Law, there is also a bar to a Muslim woman against marrying a non-Muslim and, therefore. There can be no presumption and even acknowledgement cannot be accepted to give the two persons the status of full brothers. It is clearly established that Nabi Bakhsb and Sandhi Khan were not full brothers, but were from the same mother."
5. This prompted the heirs of Akbar A.I to invoke the constitutional jurisdiction of Lahore High Court.
6. The two constitutional petitions each by a different set of con--testing parties, raised the same question of law and fact though in one the property was urban and in the other rural. However the two petitions came up before the same learned Judge on two different dates. The constitutional petition filed by heirs of Akbar A.I with regard to urban claim (W. P. 836-R-52) came to be decided earlier on 21st November, 1973. The learned Judge so far as the claim of Akbar A.I. As, a residuary of Asghar A.I or Nair A.I is concerned held as follows :- "It is not necessary to give a considered judgment on this particular question. Assuming that Mian Sandhi Khan and Sardar Nabi Bakhsh were to be deemed to be the sons of their mother, their position would be that of uterine brothers. Uterine brothers cannot be deemed to be residuary according to Muhammadan Law. Their position may at most be that of distant kindred. If the last holder of the property is to be deemed to be Asghar A.I Khan the property should be deemed to have devolved upon Nasir A.I Khan his son, Mst. Rashid Qamar Sultana and Mst. Nazir Akhtar along with their mother Mst. Karamun Nisa. In such contingency no share of the property devolves on any other residuary. The property of Nasir A.I Khan will go to the sharers i.e. His mother and the two sisters. There will be some residue left but -if there is no residuary in the field this property has to. Be distributed among the sharers according to principles of return. The uterine relation to either case does not get any property from either the father or the son. The writ petition of Safdar A.I Khan etc. Bearing No. 836 of 1965 is, therefore, liable to be dismissed for this reason alone."
7. The other Constitutional Petition (W. P. 291/R of 1972) pertaining to rural landed property came to be heard and decided by the same learned Judge on 7th December, 1973. On merits the decision in the other cons--titutional petition with regard to the absence of presumption of earlier death of the elder of the two, and the reasons of exclusion of Akbar to inherit from Asghar A.I or Nasir A.I was reaffirmed. The preliminary objection of laches was dealt with by the Court in the following words : - "It is apparent from the record that the petitioners had been fighting out this case before the civil Court and the High Court up to 1971. Their revision petition was admitted by the High Court for a regular hearing and remained pending for several years. This proves their bona -fides. Even if I had taken a contrary view, I would not have been inclined to dismiss this petition on that ground alone for the reason that it would have amounted to perpetuating contradictory orders in regard to the two types of properties left by Asghar A.I Khan and Nasir A.I Khan."
8. The constitutional petition was therefore allowed and the orders of the Rehabilitation authorities holding Akbar A.I to be an heir entitled to a share in the property, which had been allotted in lieu of the property verified on the claim forms detailed in para. 1 of that judgment was quashed.
9. The learned counsel for the petitioner in the first place contended that at the stage at which the two cases, one of urban property on the claims side and the other with regard to the rural property on the Re--habilitation Settlement Side, had reached the High Court it had become necessary as held in Ibrahim and another v. Bashir Ahmed and 2 others (1971 8 C M 9 152) to get them reconsidered with a view to reconcile them particularly so when after the repeal of all evacuee laws by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 a unified authority, notified as such, had been created to finally dispose of all such matters. The High Court should not have itself undertaken the exercise of removing the inconsistency and of reconciling the decisions.
10. By reference to entries in Encyclopaedea Brittannica (11th Edition, pages 84 to 87) and other similar reference books, the learned counsel has attempted to demonstrate that Sikh religion was monotheistic as opposed to idolatry and for this reason a marriage between a Sikh male (Raja Nihal Singh) and a Muslim female (Mst. Malan) could be countenanced. Besides, according to the learned counsel for the appellant no particular form or ceremony for marriage was prescribed amongst the Sikhs and all their marriages as were deficient in form or content had come to be regularized and validated under the Anand Marriage Act (Act VII of 1909) and no disability, de-- privation or denial of rights can take place on account of religion or case as provided in the Caste Disabilities Removal Act (Act XXI of 1850). The learned counsel for the appellant also invoked the principle of customary law as was applicable to agriculturist tribes of Punjab to support such a marriage and the right of the offspring to inherit the property. He relied on Hakim and others v.
11. Jagat Singh and another (1998 Pb, Rec, 87) a case of Sikh male and a Muslim female, wherein the following observa--tions were made :- "Recent decisions of this Court notably 33 of 1896 and 73 of 1897 have gone some distance in the direction of supporting Custom proved to exist whereby the children of connections not commenced by formal marriage ceremonies have been held entitled to succeed to their father's estate. In these cases, however, it has rather been the view that cohabitation and the treatment of the woman by the man in all respects as a lawful wife, and the treatment of the children by their father in all respects as his lawful children, takes the place of the marriage ceremony and does in fact by custom constitute a marriage and that such a view tends rather to morality than immorality on the whole, which has led to the upholding of the rights of the children to succeed."
12. Finally, the learned counsel for the petitioner has sought strength from the principles of Muhammadan Law itself for sustaining the claim of Akbar A.I , and his progeny to inherit from Asghar A.I Khan. It is contended that just as the marriage subsisting between spouses before they are converted to Islam subsists after their conversion to Islam and no new form or ceremony of marriage is required to be gone over again after conversion to Islam, the marriage or the relationship subsisting between Raja Nihal Singh and Mst. Malan did not, in the matter of succession inter se of their progeny who are all Muslims suffer from any infirmity or deficiency to bar such a succession.
13. The first objection in the nature of a preliminary jurisdictional ground taken to the decision of the High Court is based on the assumption that this conflict of decision could be avoided and got resolved by the High Court by entrusting both the matters to a single authority or tribunal. Before the repeal of evacuee laws, the verification of claims for urban properties was dealt with by an altogether different authority and under a different law, than the verification of rural claims and inheritance thereof, The decision by the High Court was given in 1973 while the repeal of evacuee laws took place in 1974 and it was then that a single notified authority was created to deal finally with all the pending or remanded matters. It was not within the power or competence of the High Court to create such an authority in 1973 and get a decision from it. The decision in Ibrahim's case is distinguishable for the reason that two inconsistent and conflicting orders had emanated from one and the same tribunal and the High Court had remanded the matter to the same au--thority for resolving the inconsistency and this court bad approved of the remand order. In the two appeals before us the inconsistency in the decisions coming before the High Court for examination was not re--latable to the same tribunal, nor could the two proceedings be handled at that time by the same tribunal. It was for the first time in the High Court that these two proceedings came to be dealt with before the same forum. The High Court in disposing of the two matters, though on two different dates and separately, resolved the inconsistency, gave a coherent and consistent decision governing both the matters. This argument of the learned counsel for the appellant, being inapplicable to proceedings of these appeals in this Court, is misconceived in respect of decision of the High Court As regards the requirements of form and ceremony the legality and validity of the marriage between Sikh male (Raja Nihal Singh) and Muslim female (Mst. Malan), there can be no manner of doubt, and none should be there, as it concerns the statue of individuals, their paternity and legitimacy and their right to succeed each other. The Anand Marriage Act, 1909 was promulgated to `remove doubts as to the validity of the marriage ceremony common among the Sikhs called "Anand". The very first requirement prescribed for the application of this Act was that there should have been a marriage duly solemnized according to the Sikh marriage ceremony called Anand", Section 3 which contains the exclusions and exemptions is most relevant for our purposes. It is reproduced hereunder :- "Nothing in this Act shall apply to-
(a) any marriage between persons not professing the Sikh religion, or
(b) any marriage which has been judicially declared to be null and void."
14. The exemption contained in clause (a) was fully attracted as one of the parties to the so-called marriage, viz. Mst. Malan was admittedly not a Sikh. There can, therefore, be no question of this marriage being validated by the force of the Statute itself.
15. The learned counsel for the appellant has also pressed into service the provisions of Caste Disabilities Removal Act, 1850 ; apparently in an effort to obliterate the difference of religion existing between Mst. Malan and Nihal Singh, for the purposes of conferring full, unconditional right of inheritance on their progeny. The provisions of this statute have no such effect. The only section of this statute provides as follows .- "So much of any law or usage now in force within the territories subject to the territories of the East India Company as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his, or her renouncing, or having been excluded from the communion of any religion, or being deprived of case, shall cease to be enforced as law in the Courts of the East India Company, and the Courts established by Royal Charter within the said territories."
16. The provision assumes for its application renunciation of religion or ex-communion or deprivation of case. None of these events happened at any stage. Besides, the exact scope of this provision was indicated by their Lordships of the Privy Council in Mitar Sen Singh v. Maqbul Hasan Khan and others (57 1 A 313) in the following words :-- "this section in terms only applies to protect the actual person who either renounces his religion or has been excluded from the com--munion of any religion or has been deprived of case. It is intended to protect such a person from losing any right of property or of succeeding as heir.", The reliance on the customary law of agriculturists in the Punjab is equally out of place for no such custom of a Muslim female contracting a valid marriage with a Sikh male is established. The decision in Hatim and others negatives such a custom in the following words :- It is, however, a great step further to hold that a connection by cohabitation between a man and a woman between whom marriage is, to their own knowledge throughout, distinctly unlawful, is to give a full right of succession to illegitimate children. We are not to set up an abstract code of morals to be followed by agricultural Sikhs, but we are distinctly obliged to recognize as such, and to refuse to accept as proved, any custom which is obviously and clearly immoral, and when it is sought to prove the existence of a custom regarding inheritance which is at least of very doubtful morality, it is necessary to scrutinize the proof of its existence very carefully, and it must not be found to be binding if contrary to justice, equity, or good conscience. A decision that the off--spring of the cohabitation of a Sikh man and a Mussalman wife, who could have none of the rights of husband and wife towards each other, are to be held entitled to succeed to their father's estate as if they were legitimate sons can only become to on the clearest evidence that this is in fact the custom, and we cannot find any such clear proof of custom in the file before us."
17. The fact of the marriage being kept secret and the failure of Raja Nihal Singh to publicly acknowledge the paternity of children born to Mst. Malan, have been utilized by the learned counsel for the appellant on the strength of decision in Ismail Ahmad Peepadi v. Momin Bibi and others (AIR 1941PCII) to single out the most important and decisive test of main--tenance and support. Their Lordships of the Privy Council held in that case as follows :- It is true that Mariam Bibi being poor and of lower social standing, his marriage with her seems to have been kept to some extent secret and be never seems to have taken her to live at his father's house, Hence the plaintiff's case does not necessarily fail because Ahmed Peepadi is not shown to have treated the plaintiff as one would ordinarily expect and only child to have been treated by his father. Though it is by no means the case made by the plaintiff or his chief witnesses, the learned District Judge thought that the effect of the evidence was that Ahmed Peepadi did not openly acknowledge the plaintiff as his son but treated him as one until his death, while all the other members of the family treated him as an imposter or outcaste. Now by far the most important question in such cir--cumstances is whether Ahmed Peepadi maintained and supported the plaintiff during all these years."
18. The most distinguishing feature of this decision is that a marriage between the spouses was legally possible, both the contesting parties admitted the fact of their marriage but were litigating over the date of divorce and the paternity of the child. In the case before us the facts were very different.
19. Mst. Malan was held to a maid-servant, a keep or a mistress, as distinguished from a wife. The enumeration of heirs of Raja Nihal Singh excluded the two sons of Mst. Malan. They were never acknowledged or recognized by Raja Nihal Singh to be his sons. They were never in receipt of the allowances and privileges allowed to heirs of Raja Nihal Singh. Such a factual background, disproved the existence of a marriage, the marriage being kept secret, or such a relationship finding recognition in agricultural custom of Punjab.
20. "An illegitimate child is considered to be the child of its mother only, and as such it inherits from its mother and its relations, and they inherit from such child. But it has been held that an illegitimate son cannot inherit from the legitimate son of the same mother."
21. This principle of law refers to us as its basis ,Tagore Law Lectures, 1873 and the decision reported as Rehmatullah and others v. Maqsood Ahmed and others (AIR 1952 All. 640). A closer examination of these references yields a conclusion which is in no way favourable to the case set out by the appellants. For example in the case of Rehmatullah the following ruling was given : - "A child born in lawful wedlock is the legitimate child of his parents and there can be no doubt about such a child having a father. An illegitimate child is begotten by man but that man cannot be considered in law to be his father As an illegitimate child has no parentage or father arid is not related in law to the man who has begotten him, the latter will not be considered his father for purposes of determining his nasab. Therefore, the man who begets an illegitimate child will not be considered in law as his father and the mother's link alone being not sufficient to estab--lish uterine relationship, an illegitimate child cannot be considered the uterine brother of the legitimate child of the same mother."
22. The exact basis for the principle is however traced in this reported case to Baillie Digest of Muharamadan Law (Ed. 2, page 703) by repro--ducing the following passage :-- "The residuaries of a wulud-ooz-zina and of the son of an imprecated woman are the moowalees of their mothers, for they have no father, and the kurabut, or kindred of their mother inherit to them and they inherit to them. So that if the son of an imprecated woman should leave a daughter, a mother, and the imprecater, the daughter would take a half, the mother a sixth, and the remainder would revert to them as if they had no father. If besides there were also a husband or a wife, he or she would take his or her share, and the remainder be between the other either as share or as return. And if he should leave his mother, a half-brother by the mother and a son of the imprecator, the mother would take a third, the half brother by the mother a sixth, and the remainder would revert to them, there being nothing for the son of the imprecator, as the deceased has no brother on the side of the father. When the child of the son of an imprecated woman dies, the family of his father inherit to him, being his brothers, but the family of his grandfather, who are his paternal uncles and their children, do not inherit to him. The same is true of the wulud-ooz-zina except that there is a difference between them in one case, which is that the tuwam on twin of the wulud-ooz- zinc inherits only as a half-brother by the mother, while the twin of an imprecated son inherits only as a half --brother by the mother while the twin of an imprecated son inherits as a full-brother."
23. The conclusion drawn from it is that "there can be little doubt that under the Hanali Law of inheritance an illegitimate child can inherit from his mother and relations".
24. The other source Tagore Law Lectures (Lecture IX) which in its turn is based on Sharayul Islam, under the heading "On illegitimate children" contains the following views which are relevant to the discussion- "Nasab, or descent, is established by a valid marriage or by the semblance thereof : it is not established by illicit intercourse.
25. "An illegitimate child (Waladuzzina) has no parentage (nasab), sa neither the man who has unlawfully begotten, nor the woman who has unlawfully born the child, nor any of their relatives can inherit from such child ; nor has the child any title to inherit from them.
26. According to one report, however, the mother and her relatives can inherit the property of an illegitimate child in the same way as that of the child of a woman separated from her husband by lian or imprecation, but this report is rejected". (Sharaya-ul-Islam, p. 457)."
27. This law relied upon by .The learned counsel for the appellant is not helpful to him because even if two illegitimate sons inherit from their mother as her sons, and their mothers relations inherit them individually as the sons of their mother alone, it not entitle them to inherit each other either as sharer or as residuaries or distant kindred. This is so because nasab or descent is found not established.
28. The upshot of the above discussion is that no marriage is established between Raja Nihal Singh (a Sikh) and Mst. Malan (a Muslim). A marriage between them cannot be inferred or presumed on the basis o any enacted law, principle of law or presence of an acknowledgment and D recognition by the spouses concerned or by the public generally. In vie. Of this finding recorded by the Claims Commissioner and endorsed by the High Court, the other two points of law required to be examined under the order granting leave do not arise in the case and are not required to examined at great length. The High Court could have resolved the con--flict in the decisions of the two authorities dealing with the same question of law. The appeal has, therefore, no merits and is dismissed. In the circumstances, the parties are left to bear their own costs.