' The dispute, in this regular second appeal, pertains to a question "as to whether Muhammad Hussain alias Muhammad Yar (herein appellant) is the son of Small alias Ismail and is entitled to inherit the legal estate left by him".
2. The facts, briefly stated, giving rise to this appeal are: that one Small alias Ismail son 'of Wahab caste Jat (hereinafter shortly stated as propositus) was owner of agricultural land measuring 3914 Kanals 14 Marlas situated in Revenue Estate Jahangla, Tehsil Hafiz Abad, District Gujranwala. He passed away on 15-8-1946 and mutation of inheritance No,69 in respect of the legal estate left by him was attested in favour of the appellant. Feeling aggrieved, the respondnets who are the real brothers of the propositus preferred appeal which was accepted by the learned Collector vide an order dated 15-7-1947. It was held that Mst. Allah Jawai mother of appellant was legally wedded wife of one Maula Parl when the appellant was born from her. Having lost the case before the Revenue Officer, the appellant took the dispute to the respectables of locality who decided that the appellant was the son of propositus, was entitled to inherit the suit land left by the propositus and got the possession of 13 acres out of the suit land delivered to the appellant. The respondents undertook to give possession of the remaining suit land to the appellant thereafter. As the respondents did not abide by their commitments, the appellant instituted a suit on 18-1-1967 for seeking declaration to the effect that he was the son of propositus and was entitled to inherit the suit land left by his father; that Mutation No,69 was illegal, fraudulent in nature and was, therefore, of no lawful consequence upon the rights of the appellant.
3. The suit was contested. Upon the divergent pleadings of the parties, the learned first Court framed as many as eight issues, out of which arguments were addressed in this Court on issues Nos.1, 6 and 7. These issues are as follows:--
(1) Whether the suit is maintainable in the present form?OPP
(2) Whether the suit is within time? OPP
(3) Whether the plaintiff is a son of Ismail son of Wahab, if so, its affect? OPP ' The parties led their oral as well as documentary evidence in order to prove their respective pleas.
Upon the scrutiny of the evidence so adduced by the parties, the learned trial Court held that Mst.
Allah Jawai was, in first instance married to one Maulu Parl; that she was abducted by propositus and the appellant was born when the marital tie between Mst. Allah Jawai and Maulu Parl was subsisting. On this conclusion, the learned first Court dismissed the suit. On appeal, the learned first appellate Court agreed with the findings of the first Court and dismissed the appeal. These decisions of the two Courts below are the subject-matter of challenge in this second appeal.
4. In disputing the correctness/legality of the findings of the two Courts below on issue No,7 the learned counsel appearing on behalf of the appellant raised following points:-- ' Firstly, that the two Courts below have not taken into consideration Exh.P-7 and Exh.P.8 which were certified copies of birth entry of the appellant. According to the learned counsel this entry proved that the appellant was son of Ismail and was treated as such by him. On the strength of this circumstance it was argued that the finding of the two Courts below on issue No,7 was unwarranted by law and merited to be set aside. Reliance was placed on Shib Deo v. Ram Prasad (AIR 1925 All. 79), Madho Saran v. Manna Lal (AIR 1933 Pat. 473), Mst. Anwari Jan v. Baldu (AIR 1936 All.
218), Sham Lal v. Muni Lal (AIR 1972 Punjab 199) and Habibullah Khan v. Saadat Khan (1990 MLD 355).
' Secondly; that the learned two Courts below have overlooked the principle of legitimacy as recognised by the Muslim Law. According to the learned counsel, this principle states that if any person is treated as son or daughter by any other person, this circumstance is sufficient evidence to prove his paternity that he is son/daughter of such person. Reliance was placed on Mohabbat All Khan v. Muhammad Ibrahim Khan AIR 1929 PC 135 and Muhabat v. Abdullah (PLD 1970 Lah. 303).
Continuing further the learned counsel strenuously submitted that Exhs. P7 and P8 were entered into the birth register on the instance of Ismail. This fact was alone sufficient to establish paternity of the appellant.
' Thirdly; that the two Courts below have erred in law in recognising the theory put forward by the respondents that Mst. Allah Jawai was woman of easy virtues; that she was legally-wedded wife of Maulu; that she was abducted by Ismail and out of this unlawful union the appellant was born; that Ismail had married Mst. Allah Jowai after the birth of the appellant. According to the learned counsel this version was not pleaded in the written statement and so respondents were not entitled to adduce any evidence in respect of this plea. On the basis of this circumstance it was contended that the learned two Courts below were not entitled to base their finding on this theory. Reliance was placed on Saeed Ahmad v. Muhammad Ahmad (PLD 1968 Lah. 520).
' Fourthly; and lastly that the evidence furnished by the respondents was irrelevant, inadmissible; that D.W.1, D.W.2 and D.W.3 were neither relatedto the parties nor were the residents of place where late Ismail lived and died. In view of this, these witnesses were not competent to depose about the relationship of the appellant with Ismail as required by section 50 of Evidence Act/Article 64 of Qanun-iShahadat Order.
5. In reply the learned counsel for the respondents supported the impugned decision. He raised at the outset, a preliminary objection to the maintainability of the appeal by suggesting that the concurrent conclusions of the two Courts below on issues Nos.1, 6 and 7 were in accordance with the material on record and were not open to interference under section 100 of the Code of Civil Procedure. On merits the learned counsel argued that Mst. Allah Jawai was the wife of Maulu, was kidnapped by Ismail who kept her for sufficiently long time as his mistress and from this union the appellant was born. According to the learned counsel the appellant was correctly held to be an illegitimate child of Ismail. It was finally represented that the appellant was in possession of 12 acres out of the suit land as tenant under them and his suit, therefore, regarding remaining share was barred under proviso to section 42 of the Specific Relief Act.
6. From the above narration, following questions emerge for decision:---
(i) Whether the appellant was the son of Ismail deceased and was so entitled to inherit suit land?
(ii) Whether the suit filed by the appellant was barred under proviso to section 42 of the Specific Relief Act?
6. Before I proceed to deal with the questions noted above, it is proper to examine the two well- known principles of law having a decisive bearing on the fate of this appeal. Firstly, it is a settled law of Muslim Jurisprudence that where marriage between the parties is not capable of direct proof and there is no possibility of its proof by documentary or oral testimony, in such cases Muslim Law presumes legal marriage from continual cohabitation or acknowledgment made by husband and wife regarding their marital status. This legal presumption is subject to condition that there exists no insurmountable impediment in the way of such presumption and the relationship between the parties is not of a casual nature but is of a permanent character. The statement of law on this subject has been succinctly summed up by D.F. Mulla in a celebrated treatise of Muhammadan Law in paragraph No,331, 18th Edition page 425, which is as follows:-- "331. Acknowledgment of legitimacy.--(1) Where the paternity of a child, that is, his legitimate descent from his father cannot be proved by establishing a marriage between his parents at the time of his conception or birth, the Islamic Law recognizes 'acknowledgment' as a method whereby such marriage and legitimate descent can be established as a matter of substantive law for purposes of inheritance." `The Islamic Law of acknowledgment of parentage with its legitimating effect has no reference whatsoever to cases in which the illegitimacy of the child is proved and established, either by reason of lawful union between the parents of the child being impossible (as in the case of an incestuous intercourse or an adulterous connection), or by reason of marriage necessary to render the child legitimate being disproved. The doctrine relates only to cases where either the fact of the marriage itself or the exact time of its occurrence with reference to the legitimacy of the acknowledged child is not proved in the sense of the law as distinguished from disapproved. In other words, the doctrine applies only to cases of uncertainty as to legitimacy, and in such cases acknowledgment has its effect, but that effect always proceeds upon the assumption of a lawful union between the parents of the acknowledged child". In short, the doctrine applies only to cases where either the fact or the exact time of the alleged marriage is a matter of uncertainty, that, is neither proved nor disproved. Stated in another form, the doctrine is "limited to case of uncertainty of legitimate descent, and proceeds entirely upon an assumption of legitimacy and the establishment of such legitimacy by the force of such acknowledgment.
(2) The acknowledged child may be a son or a daughter. The case of Muhammad Allandad Khan v.
Muhammad Ismail Khan (1888) IL 10 All. 289) is a leading case on this subject. The celebrated Mahmood, J. Enunciated the doctrine of acknowledge ment according to Muslim Law in this case in following words:-- "The learned Judge held, that although, according to the Mohammadan Law, Ikrar of acknowledgment in general stands upon much the same footing as an admission as defined in the Evidence Act, acknowledgments of parentage and other matters of personal status stand upon a higher footing than matters of evidence, and form a part of the substantive Mohammadan Law.
So far as inheritance through males is concerned, the existence of consanguinity and legitimate descent is an indispensable condition precedent to the right of succession, and such legitimate descent depends upon the existence of a valid marriage between the parents. Where legitimacy cannot be established by direct proof of such a marriage, acknowledgment is recognised by the Mohammadan Law as a means whereby the marriage of the parents or legitimate descent may be established as a matter of substantive law. Such acknowledgment always proceeds upon the hypothesis of lawful union between the parents and the legitimate descent of the acknowledged person from the acknowledgor, and there is nothing in the Mohammadan Law similar to adoption as recognised by the Roman and Hindu systems, admitting of an affiliation which has no reference to consanguinity or legitimate descent. A child whose illegitimacy is proved beyond doubt, by reason of the marriage of its parents being either disproved or found to be unlawful, cannot be legitimated by an acknowledgment.
Acknowledgment has only the effect of legitimation where either the fact of the marriage or its exact time with reference to the legitimacy of the child's birth, is a matter of uncertainty."
' The rule laid down in Allandad Khan's case (1888) IL 10 All. 289) was noted with approval by Judicial Committee in the case of Ashrufood Dowlah Ahmad Hossein Khan v. Hyder Hossein Khan (1866) 11 Moo IA. 94), in following words:-- "The presumption of legitimacy from marriage follows the bed and whilst the marriage lasts, the child of the woman is taken to be the husband's child; but this presumption follows the bed, and is not ante-dated by relation. An ante-nuptial child is illegitimate. A child born out of wedlock is illegitimate, if acknowledged, he acquires the status of legitimacy. When, therefore, to a child really illegitimate by birth becomes legitimated, it is by force of an acknowledgment express or implied, directly proved or presumed. These presumptions are inferences of fact. They are built on the foundation of the law, and do not widen the grounds of legitimacy by confounding concubinage and marriage. The child of marriage is legitimate as soon as born. The child of a concubine may become legitimate by treatment as legitimate. Such treatment would furnish evidence of acknowledgment. A Court would not be justified, though dealing with this subject of legitimacy, in making any presumptions of fact which a rational view of the principles of evidence would exclude.
The presumption in favour of marriage and legitimacy must rest on sufficient grounds, and cannot be permitted to override over-balancing proofs, whether direct or presumptive."
The principles laid down in aforenoted celebrated judgments were reiterated by Privy Council in Habibur Rehman Choudhary v. Altaf All Chowdhary (Vol. XLVIII), Indian Appeals (1920-21) page 114), in following words: "Before discussing the subject, it is as well at once to lay down with precision the difference between legitimacy and legitimation. Legitimacy is a status which results from certain facts.
Legitimation is a proceeding which creates a status which did not exist before. In the proper sense there is no legitimation under the Mohammadan Law. Examples of it may be found in other systems. The adoption of the Roman and the Hindu Law effected legitimacy. The same was done under the Canon law and the Scotch law in respect of what is known as legitimation per subsequens matrimonium. By the Mohammadan Law a son to be legitimate must be the offspring of a man and his wife or of a man and his slave; any other offspring is the offspring of Zina, that is, illicit connection, and cannot be legitimate. The term "wife" necessarily connotes marriage; but, as marriage may be constituted without any ceremonial, the existence of a marriage in any particular case may be an open question. Direct proof may be available, but if there be no such, indirect proof may suffice. Now one of the ways of indirect proof is by an acknowledgment of legitimacy in favour of a son. This acknowledgment must be not merely of sonship; but must be made in such a way that it shows that the acknowledgor meant to accept the other not only as his son, but as his legitimate son. It must not be impossible upon the face of it; i,e, it must not be made when the ages are such that is impossible in nature for the acknowledgor to be the father of the acknowledgee, or when the mother spoken to in an acknowledgment, being the wife of another, or within prohibited degrees of the acknowledgor, it would be apparent that the issue would be the issue of adultery or incest. The acknowledgment may be repudiated by the acknowledgee. But if none of these objections occur, then the acknowledgment has more than a mere evidential value. It raises a presumption of marriage, a presumption which may be taken advantage of either by a wife- claimant or a son-claimant. Being, however, a presumption of fact, and not juris et de jure, it is, like every other presumption of fact, capable of being set aside by contrary proof. The result is that a claimant son who has in his favour a good acknowledgment of legitimacy is in this position: The marriage will be held proved and his legitimacy established unless the marriage is disproved. Until the claimant establishes his acknowledgment the onus is on him to prove a marriage. Once he establishes an acknowledgment, the onus is on those who deny a marriage to negative it in fact."
' The doctrine of acknowledgment as enunciated above, was followed in Bibi Amu v. Mst. Asiat and others (PLD 1958 Karachi 420) and Major Slier Afzal v. Shamim Firdaus and another (PLD 1980 SC 228).
8. The ratio emerging from the aforegoing examination is, when there is no direct evidence of marriage between the parties, the paternity of the child and validity of marriage between the parties can be established by acknowledgment (in accordance with Sharia) made by parties provided the acknowledgment is not violative of the principles laid down by Muslim Jurisprudence.
Secondly, it is a well-known principle of Muslim Jurisprudence that as soon as a Muslim owner dies, succession to estate left by him immediately opens and title passes to the heirs without any intervention by State functionaries or clergies. The theory of representation of estate by intermediary is unknown to Islamic Law of Inheritance. Reference be made to Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1).
9. Applying these principles to the facts and circumstances of the case and the findings rendered by the two Courts below, I am constrained to hold that the forums below have not correctly appreciated the principle of acknowledgment as well as principle of immediate opening of succession while deciding the case. It is not in dispute between the parties that Mst. Allah Jawai, mother of the appellant was married to propositus. It is also not disputed that when Ismail passed away, Mst. Allah Jawai was his legally-wedded wife. It is not the case of either party that the propositus was survived by any legal issue. The dispute centres around the question that Mst. Allah Jawai was earlier married to Maulu Parl and was, in fact, kidnapped by Ismail and the appellant was born when Mst. Allah Jawai was still the wife of earlier husband. These facts undisputedly were not pleaded in the written statement. In fact, at one stage it was pleaded that the appellant was the son of Maulu Parl and not the son of the propositus. Ghulam s/o Murad, D.W.2, Muhammad s/o Balawal, D.W.3 and Khyzer Hayat, one of the respondents D.W. 5 gave this version when these witnesses appeared before the Court. Against this evidence, the appellant appeared in the witness-box as P.W. 1 and tendered into evidence the certified copy of extracts from the Register relating to entries of birth pertaining to Jalalpur Bhatian, District Gujranwala. These entries were made at the report of Chowkidar and show that the appellant was the son of Muhammad Hussain and was born on 14-9-1932. Exh. P-7 shows that Mst. Noor Fatima was born on the same date and was the daughter of propositus. The statement of the appellant coupled with Exhs. P,7 and P.8 was sufficient in quality and quantity to establish that the propositus treated appellant as his son. There was, thus, a presumption of legitimacy to the status of the appellant as well as the marital relationship between Mst. Allah Jawai and Ismai (deceased). In the presence of this evidence, the onus lay upon respondents to establish by unimpeachable evidence that the appellant although was born from the loin of Ismail deceased yet he was born when there subsisted marital relationship between Mst. Allah Jawai and her first husband, Maulu Parl. No such evidence was brought on record. There was no such case of respondents from inception to finish. The analysis of the evidence furnished by respondents clearly indicates that the respondents from beginning were advancing one reason or the other to demonstrate that the appellant was not the son of Ismail deceased and, was therefore, not entitled to inherit the legal estate left by him. In the first instance they have taken the position that he was the son of Maulu Paid and subsequently they have taken the position that, in fact, he was the son of Ismail but not legitimate. Islam leans in favour of marriage and abhors illegitimacy. This aspect of the case was wholly overlooked by the two Courts H below. I have, therefore, no hesitation in coming to the conclusion that the evidence adduced by the appellant is sufficient in quality and quantity to establish that the appellant is the son of. Ismail deceased and so has a legal title to inherit the legacy left by his father. In so far as the second question is concerned, it is on record that the appellant had been in possession of 13 acres of land; that being the legal heir, he shall be presumed to be in possession of his entire share. No principle of limitation can be used to defeat the visible right of inheritance of the appellant.
10. As a result of above discussion, this regular second appeal is bound to succeed. I hereby accept the appeal, set aside the judgments and decrees passed by learned Additional District Judge, Gujranwala dated 27-1-1970 and learned Civil Judge, Wazirabad dated 15-3-1968 and decree the suit filed by the appellant with requested reliefs. The respondents shall bear the costs of proceedings throughout.