JUDGMENT
1. Mohammad Shafiuddm and Mohammad Faisal, hereinafter referred to as appellants 1 and 2 respectively, have preferred an appeal in this Court against the judgment and decree passed in Title suit No. 92/2 of 1959/63. The said suit was instituted by respondents 1 to 4 on the 12th November, 1959, impleading the Rank of Bihar Ltd., Patna (respondent No. 5) as the sole defendant. Subsequently, the two appellants intervened and they became intervenor defendants by the order of the trial court. The said suit was for declaration that the plaintiffs (respondents 1 to 4) were entitled to the contents of the locker No. 146 of the Bank of Bihar Ltd. (respondent No. 5) and that they were entitled to operate the same. Bibi Najma (Respondent No. 1) is the widow of Md. Yahya, resident of village Sakrawan, police station Asthawan, district Patna, whereas respondents to 4 are her minor sons through Md. Yahya. The appellants, who were added as intervenor defendants alleged that they were also the sons of Md. Yahya from his earlier wife namely, Zainab who was the first wife of Md. Yahya and, they, according to them, are also entitled to the share in the contents of the locker. Subsequently, the plaintiffs got their plaint amended denying the allegation of the intervenor defendants and the plaintiffs alleged that Zainab was not the wife of Md. Yahya, rather she was married with one Quadir of Biharasharif. Therefore, according to the plaintiffs, the intervenor defendants are sons of Quadir through Zainab. According to them, Quadir is now dead. The plaintiffs’ further case was that the first marriage of Md. Yahya was with Hasiba, the daughter of late Khan Bahadur Maulvi Md. Sayeed (hereinafter referred to as Khan Bahadur) an advocate of Monghyr. Hasiba died issueless in March or April, 1931. Thereafter, according to the plaintiffs, the second marriage of Md. Yahya took place with respondent No. 1 in 1947, and from the second marriage respondents 2 to 4 were born. On behalf of the plaintiffs, it was asserted that Zainab was working as maid-servant of Bibi Asiran, the mother of Md. Yahya. The intervenor defendants filed their written statement on the 12th February, 1960, and, an additional written statement was filed on their behalf on the 22nd July, 1963. We have already indicated their stand and the allegation made in the suit The further case of the intervenor defendants was that plaintiff No. 1. their step-mother, purposely filed the present suit in order to defraud and deprive these defendants from their legal shares. According to them, they were in service outside Patna, and plaintiff No. 1 (respondent No. 1) was living with Md. Yahya, and, therefore, she on Md. Yahya’s death got hold of the bunch of the keys including the key of the looker and other movable properties. According to them, plaintiff No. 1 has only -/2/- share in the property of Md. Yahya including in the locker in question, while the intervenor defendants and plaintiffs 2 to 4 have each -/2/16 dams (two annas and sixteen dams) share, and, thus the defendants are co-sharers to the extent of 5 annas 12 dams in the contents of the locker and all in other properties.
2. The admitted case of the parties was that Md. Yahya died on the 21st October, 1959, Md. Yahya had deposited important documents relating to annuity certificates, share certificates and other valuables is looker No. 146 of respondent No. 5 ; but the details of the contents of the locker were not known. Plaintiff No. 1 was advised to obtain a succession certificate and for her appointment as guardian of her minor sons. In order to ascertain the particulars of the assets left by Md. Yahya, she was also to find out the contents of the locker No. 146 for the purpose of an application for succession certificate, for which she had written to respondent no, 5. Respondent No. 5 wrote a letter on the 24th October, 1959 calling upon her to seek a declaration of her title to the said looker which had necessitated the filing of the said title suit.
3. On the pleadings of the parties, the trial court framed the following issues:
1. Is the suit as framed maintainable?
2. Had the plaintiff any cause of action for the suit?
3. Are the intervenor defendants sons of Yahya?
4. Are the plaintiffs entitled to the contents of locker No. 146 of Bank of Bihar Ltd. Patna, and are they entitled to operate on the same?
5. To what relief, if any, are the plaintiffs entitled?
For the purpose of this appeal, only issue Nos. 3 and 4 are important. Another important allied question which falls for consideration in this appeal is as to whether Hasiba was the first wife of Md. Yahya.
4. In order to establish their respective cases, the parties filed various documentary evidence as well as examined several witnesses, The trial court, after considering the evidence on these two issues, found that the intervenor defendants (appellants 1 and 2) are illegitimate sons of Md. Yahya from his concubine, Zainab, and as such, they have no interest in the disputed properties. He further found that the plaintiffs alone are entitled to the contents of looker No. 146 of the Bank of Bihar Ltd., Patna (respondent No. 5), and that the plaintiffs are entitled to operate the same. Therefore, he found that the defendants were not the legitimate sons of Md. Yahya as claimed by the defendants appellants. Thus, he answered issue No. 3 in the negative, whereas on issue No. 4 he found that the plaintiffs were entitled to the contents of the looker and, therefore, he answered that issue in the affirmative. On the question as to whether Hasiba was the first wife of Md. Yahya, the trial court also found in favour of the plaintiffs-respondents in paragraph No. 19 of its judgment page 195. It held (hat the first marriage of Md. Yahya took place with Hasiba, the daughter of Khan Bahadur Sayeeduddin who was admittedly the Government pleader of Monghyr.
5. Mr. Lakshman Saran Sinha, learned Counsel for the appellants, has assailed the impugned judgment and decree and has raised the following points for consideration by this Court:
(i) According to him, the trial court erred in holding that the first marriage of Md. Yahya took place with Hasiba and that after the marriage roksati also took place;
(ii) The trial court erred in holding that Md. Yahya was not married with Zainab;
(iii) The trial court after having held that maternity and paternity of the appellants were established, that is, Md. Yahya was the father and Zainab was the mother of the appellants, the trial court ought to have held that Zainab was legally married with MTd. Yatiya;
(iv) According to Section 114 of the Evidence Act, he contended that there is a presumption that if a man and a woman live as husband and wife for a sufficient period of time, the marriage between them is presumed, and the children so born by the union have to be held to be legitimate; and
(v) The trial court failed to appreciate that there was an acknowledgment by Md. Yahya that the appellants were his sons and the said acknowledgment from Md. Yahya was sufficient to hold that the appellants are the sons of Md. Yahya.
6. It will be convenient to deal with point No. (i) first. In order to appreciate the submissions of the learned Counsel-for the parties, it would be convenient also to reproduce a part of the genealogical table showing the relationship of the parties.
Maulvi Rafiuddin (died in 1919)
= 2nd wife Most. Bibi Asiran (died some time in 1942
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Md. Yahya Zahir Batin Bibi Soghra
(died on 21.10.1959)
= 1st wife-According to the respondents, Most. Hasiba, daughter of
Khan Bahadur Maulvi Md. Sayeed. Advocate, died issue-
less.
-According to the appellants, Most. Zainab (who died in
1939) was the 1st wife.
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Md. Faisal Md, Shafluddin
(appellant No. 2) (appellant No. 1)
= 2nd wife-Most. Bibi Najtna (plaintiff-respondent No. 1)
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Abu Sufiyan Walid Hasham
(plaintiff-respondent (plaintiff-respondent (plaintiff-respondent
No. 2) No. 3) No. 4)
Learned Counsel for the appellants submitted that, according to the case of the appellants, Md. Yahya was not married with Hasiba, daughter of Khan Bahadur. The marriage was merely negotiated. The negotiation broke down, because later it was found that Hasiba was suffering from tuberculosis, due to which she was undergoing a prolonged treatment in Itki Sanitorium, and, later she died soon after in the house of her parents in 1931. Therefore, he submitted that, in fact, the marriage did not take place nor did roksati take place since the marriage had not taken place, and so the question of roksati did not arise at all. He submitted that the case of the respondents that Hasiba was married in February, 1930 and that the roksati took place in December, 1930 was not correct.
7. On behalf of the plaintiff-respondents, apart from the oral evidence to establish the marriage of Hasiba with Md. Yahya, various documents were also produced G. Moinuddln Konandi son of late Khan Bahadur was examined as P.W. 3 on behalf of the respondents. At the time when the deponent examined himself, he was a Munsif. In our opinion, he is a competent witness and at the same time a responsible judicial officer. His evidence is that he knew Md. Yahya of village Sakrawan, and he further categorically stated that his first wife was the deponent’s only sister, Hasiba. She died about one year after her marriage. Slip had m issue Md. Yahya was again married for the second time in 1947 with Bibi Najma of village Sakrawan. Learned Counsel for the appellants has not given any valid reason for not relying on his testimony, and we do not find any material to discredit this witness. His evidence further finds corroboration from the evidence of Fazlur Rahman (P. W. 15). He stated in his evidence that he knew Bibi Najma (plaintiff No. 1). She is the cousin sister (mameri bahan) of the deponent. He further stated that he knew Md. Yahya who was related to the deponent as mamu. He has stated that Md. Yahya had two marriages. His first marriage was with the daughter of Khan Bahadur who was the Government pleader at Monghyr. His second marriage was with Najma. We do not find any good reasons for disbelieving the evidence of these witnesses. Another important witness on the point is Gholam Mohiuddin (P.W. 40), It may be noticed that he is another son of Khan Bahadur. He was examined on commission. He stated that he knew Md. Yahya who was his brother-in-law (bahnoi). His sister Hasiba was married with Md. Yahya. His sister was the first wife of Md. Yahya, The said marriage with his sister took place on the 24th February, 1930. The nikah of the deponent was also performed on that very date. He also said that his sister, Hasiba, died in June, 1931, and, after the death of his sister, Yahya took a second wife named Bibi Najma, daugher of Abdul Bari of village Sakrawan. He further emphasised that Md. Yahya did not take any other wife, besides the two wives, referred to above. He has also stated that after the marriage, roksati of his sister also took place. We do not find any justification to discard his evidence on this point. Similar is the evidence of Md. Abdulla (P.W. 41) supporting the case of the plaintiffs on this point. Md. Abdul Matin (P.W. 19), an advocate, Ram Balak Singh (P.W. 20), Mukhia, and Baijnath Singh (P.W. 24), an old servant of Md. Yahya, also deposed to the same effect, besides Bibi Najma (Plaintiff No. 1), who was examined as P.W. 39. Apart from the oral evidence, the documentary evidence on this point is to be found in Exts. 4 to 4 (c). Ext. 4 is a letter dated the 6th February, 1930 written by Khan Bahadur to one Amir Hassan, mamu of Md. Yahya. This letter, however, merely refers to the fixation of the date of marriage between Yahya and Hasiba, daughter of Khan Bahadur. By ‘aqd’ is meant nikah according to the Mohammadans. In the said letter, a suggestion has been made that nikah should be performed on 24th Ramzanul-mubarak, corresponding to the 24th of February, 1930. Then is the letter written by Khan Bahadur to Md. Yahya which is marked Ext. 4 (a) dated the 7th September, 1930. In the said letter, enquires about the welfare of Md. Yahya were made because he had learnt that Yahya had suffered from strain in his leg, and, therefore, Khan bahadur was anxious to know about his welfare. This letter does not indicate that the marriage had, in fact, taken place. Therefore, we have now to travel to the contents of some other letters. The other letter is also written by Khan Bahadur to Amir Hassan, the mamu of Md. Yahya. It is dated the 26th September, 1930 and is marked as Ext. 4 (c). In the letter, after due compliments, it is mentioned that one pair of glass bangles by way of measurement and one kurta were being sent to him through a special messenger. The shoes should be of the measurement of those sent by him, namely, Amir Hassan, previously, and it was reported that those were quite fit in the feet. This also shows the preparation of the marriage, namely, nikah. From this letter also, it would not be clear that aqd, that is nikah had taken place. However, we turn to another letter dated the 27th September, 1930 written by Khan Bahadur to the same Amir Hassan which is marked as Ext. 4 (b). From this letter, it is clear that aqd was performed. It will be relevant to mention here the relevant portion of the said letter which reads thus:
By the grace of God I am quite well and wish your welfare several months have passed since the performance of aqd. The rainy season is also passing away and it will be over soon in a month. It is necessary that rukhsati should be performed with grandeur and pomp. God is the helper.
Therefore, we have no doubt in our mind that the marriage of Hasiou took place with Md. Yahya and that is the first marriage and it also shows that the roksati took place. Unfortunately, however, due to her illness, she died as mentioned above soon after in 1931. As against this overwhelming evidence, on behalf of the appellants also some witnesses were examined to establish that Zainab was the first wife of Md. Yahya and that Hasiba was not married at all with Md. Yahya as the negotiation of the marriage had broken down, because it was later found out that she was suffering from tuberculosis. It should be made clear that on behalf of the appellants, no documentary evidence has been adduced to establish the marriage of Zainab as his first wife with Md. Yahya. On behalf of the appellants, only oral evidence was adduced. These witnesses are Ganga Prasad (D.W. 2), Harihar Mahto (D. W. 11), Garbhu Dhorhi (P. W. 12), Munshi Mahto (D. W. 13), Jagdeo Singh (D. W. 14), Khub Lai Ram (D. W. 15), Phaguni Mahto (D. W. 16), Debi Mahraj (D. W. 17), Dasrath Pathak (D. W. 18), Narain Gope (D. W. 19), Parsadi (D. W. 20) and Md. Safiuddin (D. W. 21). D. W. 21, it may be noticed, is appellant No. 1 who was defendant No. 2 in the trial court. D. W. 2 in his evidence stated that Md. Yahya was not married with the daughter of Khan Bahadur. There was only marriage negotiation for this marriage, but in the mean time the girl got attack of tuberculosis and she died and so there could not be marriage between Md. Yahya and the daughter of Khan Bahadur, Hence, Yahya was married in village Panohi with the daughter of Kabiruddin. D.W. 11 has stated that the first marriage of Md. Yahya. was in village Panchi with the daughter of Kabir Babu. It has come in evidence on behalf of the appellants that Zainab was the only daughter of Kabir Babu of village Panohi. D. W. 12 also stated that the first marriage of Md. Yahya was in village Panchi, and the girl was the daughter of Kabir Babu of Panchi, and she was mother of Sail and Faisal. D. W. 13 does not say that the first marriage of Yahya was with Zainab, but he stated that Zainab was married with Yahya, and he had attended the marriage. He also stated that Zainab was the daughter of Kabiruddin of village Panchi. D. W. 14, however, stated that Md. Yahya was at first married with Zainab. The marriage took place in 1930. D. W. 15 also does not state clearly that Zainab was the first wife of vld. Yahya, but he simply stated that he knew Kabir of Panohi and Kabir had only one daughter named Zainab and he had no other daughter. Zaiaab was married with Md. Yahya at Sakrawan. Similar is the evidence of D. W. 16. He simply stated that Zainab was the only daughter of Kabir and was married with Md. Yahya, So is the statement of D. W. 17. He also stated that he knew Kabir of Panohi and his daughter was married with Md. Yahya. D. W. 18 had also simply stated that he knew Kabir, and his daughter was married with Md. Yahya. D. W. 19 stated that the first marriage of Md. Yahya wits with the daughter of Kabir Babu of Panohi. D. W. 20 stated that the first marriage of Md. Yahya was in village Panchi with the daughter of Kabir Babu, Then is the,evidence of appellant No. 1 himself as D.W. 21 on this point appellant No. 2 as D. W. 23, who had stated like others that Zainab was the only issue of Kabiruddin of Panchi.
8. On the other hand, on behalf of the respondents evidence has been adduced to be shown that Kabiruddin of Panchi had not only one issue. Reference may be made to Ext. 23 (b) which is a sale-deed executed by Kabiruddin in favour of Abdul Mian by a registered deed dated the 9th April, 1932, wherein inter alia, Kabiruddin stated that he had sold the property in order to finance the marriage of his first daughter. That indicates that he had more than one daughter. Besides, this deed falsifies the evidence of the witnesses examined on behalf of the appellants also on other grounds, namely, that according to the appellants as mentioned earlier, the marriage of Zainab with Md. Yahya had taken place in February, 1930 ; as this sale-deed (Ext. 23/b) which was executed, as already mentioned, on the 9th April, 1932, mentions that this was executed for the marriage of the first daughter of Kabiruddin. It will be also pertinent to refer to the evidence of Saida (P. W. 16). She is daughter of Kabiruddin. She stated in her evidence that her father who was resident of Panohi had four daughters including the deponent. She further stated that one of her sisters named Rakiba was dead, and the other three sisters including herself are still alive. Tamijan and Zubeda are her other sisters who are alive. She emphatically stated that it was false to say that Kabiruddin had a daughter named Zainab. She also stated that Zainab was not her sister. She had no sister named Zainab. She emphasized that she did not know Safi and Faisal (the two appellants). Another important witness on this point is P. W. 17 Mozibur Rahman. He is the son of Kabiruddin. He had also stated that he had no sister by name Zainab. He did not know Safi and Faisal, and he made it clear that Safi and Faisal were not the daughter’s sons of Kabiruddin. He corroborated his sister by stating that Kabiruddin had four daughters and he has named them. These materials completely falsify the witnesses examined on behalf of the appellants, referred to above. That apart, the evidence adduced on behalf of the respondents on this point is far superior to those of the appellants. As indicated above, the oral evidence finds ample corroboration from the documentary evidence produced on behalf of the respondents. In that view of the matter, there is no merit in the contention of the learned Counsel for the appellants under point No. (i), and we hold that the first wife of Md. Yahya was Hasiba, the daughter of Khan Bahadur.
9. Mr. K.K. Sinha, learned Counsel for the respondents, submitted that since the appellants had failed to establish that Zainab was married for the first time with Md. Yahya, the entire case of the appellants falls to the ground. In our opinion, no doubt a part of the appellants’ story is falsified, but due to that reason the appellants’ entire version cannot be brushed aside. Still, the main issue has to be considered, namely, as to whether the appellants are the sons of Md. Yahya, and this brings us to the consideration of the submission of the learned Counsel for the appellants under point No. (ii). This point, of course, will require investigation as to whether Zainab was legally married with Md. Yahya. Only after finding out as to whether she was legally married or not with Md. Yahya, we can come to the conclusion as to whether the appellants were the sons of Md. Yahya or not. Learned Counsel for the appellants has conceded that on the point of marriage of Zainab with Md. Yahya there is no documentary evidence. Her marriage with Md. Yahya depends upon the oral testimony of various witnesses examined on behalf of the appellants. The witnesses on this point also are D. Ws. 2, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23 and 24. Ganga Prasad (D. W. 2) has stated in his evidence that he was Gumasta and Patwari of Md. Yahya, Zahir and Batin. He stated, Inter alia, that Md. Yahya was married with the daughter of Kabiruddin. The marriage had taken place in 1337 Fs. corresponding to 1930. The nikah of the marriage took place in Panchi, He had attended the nikah ceremony and also the barat of that marriage. Zainab was the name of the wife of Md. Yahya. Safi and Faisal are sons of Yahya from his wife, Zainab. He stated that Zainab died at Patna in 1346 Fs. corresponding to 1939. Her dead body was buried in Sakarawan in the graveyard where the dead bodies of the family of Yahya and others have been buried. It may be recalled that according to the respondents Zainab was not legally married to Md. Yahya, and she was a maid-servant of Yahya’s mother, Bibi Asisran, and, according to the further case of the respondents Zainab was the daughter of Ramju of Sakrawan. This witness, namely, D. W. 2, has, therefore, in his evidence denied that Zainab was the maid-servant. He has also denied that she was the daughter of Ramju Mian of Sakrawan. He asserted that she was the daughter of Kabiruddin of Panchi. D. W. 11 is a co-villager, resident of village Sakrawan. He stated that Md. Yahya was married with the daughter of Kabir, and the deponent had attended the barat on the occasion of the marriage. Faisal and Safi are the sons of Yahya from that wife. Their evidence in this regard is supported by D. W. 12, the Gorait of Md. Yahya and his brothers, D. W. 13 was the servant of Md. Yahya, and D. W. 14 was one of the servants from the time of the father of Yahya and his brothers. D. W. 15 is a resident of village Panchi and he is known to Kabir of Panohi, D. Ws. 16, 17 arid 18, also of village Panchi, have supported them on this point. D. W. 19 is one of Gorakhias of Md. Yahya and his brothers of village Sakrawan. D. W. 20 is also of village Sakrawan. He not only spoke about the marriage of Zainab with Md. Yahya and that the appellants were the sons of Zainab through that marriage, but he also stated about some other matters, such as, that when the said wife of Md. Yahya died, her dead body was buried at Sakrawan by the side of the family members of Md. Yahya. D Ws. 21 and 23 are, of course, the appellants themselves who are highly interested and their evidence requires close scrutiny in the light of the other materials on the record which we shall be presently discussing. Lastly, on this point is Deocharan Singh (D. W. 24). He was appointed Gumasta, as he stated, in 1327 Fs. equal to 1920 in Sakrawan estate on behalf of Md. Yahya, Zahir, Batin, Bibi Asiran and Bibi Soghra, He further stated that he has been working for the appellants since 1367 Fs. equal to 1960 as their Gumasta in village Sakrawan. Therefore, this witness is also highly interested with the appellants. He has said like others that Md. Yahya was married in Panchi with Zainab, the daughter of Kabiruddin, and the appellants are the sons of Zainab and Yahya. He stated that it was false to say that Zainab was the maid-servant of Yahya and his. mother. As against these witnesses, on behalf of the respondents several witnesses were examined to state that Zainab was not legally. married with Yahya, and the appellants were not the sons of Md. Yahya. According to the respondents as mentioned above, Zainab was merely a maid-servant, and Zainab was married with one Quadir Patwa of BiharsharilT and that she was not the daughter of Kabiruddin of Panohu but was the daughter of Bamju of Sakrawan. The witnesses examined on these points can be catalogued at one place. The first witness on this point is P. W. 3. It may be recalled that he is a Munsif and son of late Khan Bahadur. He stated in his evidence that he knew appellants 1 and 2 as imposter sons of Md. Yahya the appellants’ mother was the maid-servant in the family of Md. Yahya as she used to be addressed as Zainabia by family members of the family of Md. Yahya. Besides, she used to go out of the house clad as a maid-servant to serve the deponent and others for giving them tea or water. He emphasized that it would be absolutely false to say that Zainabia was the first wife of Md. Yahya. P. W. 9 is a cultivator of village Waiya, police station Asthawan, which is very close to village Sakrawan, and the deponent was married in village Sakrawan in 1924. He stated that Zainab was the daughter of Rainju of Sakrawan, Zainab was working as maid-servant of Md. Yahya. She was the maid-servant of the mother of Md. Yahya. Zainab was married with Quadir who used to work as Patwari. He was a resident of Biharsharif. The two sons, namely, the appellants were born to Zainab through her husband, Quadir. He emphasized that it was false to say that Zainab was married with Yahya. It was equally false to say that the appellants are the sons of Md. Yahya by Zainab. P. W. 10, a resident of village Sakrawan, deals in biri leaves. He has also supported them by saying in his evidence that Zainab was the daughter of Ramju Mian of Sakrawan. She was married with one Quadir of Biharshariff. Nikah of Zainab with Quadir took place in village Sakrawan in his presence. The two sons born to Zainab from Quadir are the two appellants. Zainab used to work as maid-servant of Md. Yahya. He emphasized that it was false to gay that Zainab was married to Yahya, and it was equally false to say that the appellants are the sons of Md. Yahya. These facts are supported by P. W. 11 who is a resident of village Raja Bigha of Police station Asthawan. Originally, he was a resident of village Sakrawan, Rajabgiha being only 400 bans away from village Sakrawan. P. Ws. 12, 13 and 14, are also witnesses on this point. It may be recalled that P. W. LS is an Additional Subordinate Judge. He stated, inter alia, in his evidence that it was false to say that Md. Yahya was married with Zainab. He said that he had seen Zainab. She was the maid-servant of Bibi Asiran, wife of Maulvi Rafiuddin, who was the father of Md. Yahya. He had seen the sons of Zainab and those sons were the appellants. He reiterated that it was not a fact that the appellants were the sons of Md. Yahya. It may be noticed that P. W. 1.6 has also stated that Zainab was not married with Yahya of Sakrawan, P. W. 17 has also stated that Zainab was not married with Yahya, But, in our opinion the evidence of P. Ws. 16 and 17 will not be very material, because they came forward, as mentioned above, to deny that Zainab was not their sister. Therefore, if they did not know Zainab, it would be difficult to rely on them on the other point as to whether Zainab was married with Yahya. P. W. 19, an advocate, has stated that Zainab was a maid-servant at the place of Md. Yahya and that she was not married with Md. Yahya but was married at Biharsharif. He further said that he knew the appellants and that they were the sons of Quadir and Zainab. It is false to say that they were the sons of Md. Yahya. He also said that it was equally false to say that Zainab was the wife of Md. Yahya. P W. 20 has also supported them on this point by stating that Zainab was the maid-servant and was the daughter of Ramju of Sakrawan and that she was married with Quadir Patwa at Biharshariff. The appellants are the sons of Zainab from her husband, Quadir Patwa. P, W. 24 also came forward to support the case of the plaintiffs and stated that Zainab was the maid-servant of the mother of Md. Yahya, and Zainab was the daughter of Ramju. It was false to say that Md. Yahya was mariied with Zainab. P. W. 39, Bibi Najma, who was plaintiff No. 1, examined herself as P. W. 39. She being a party is highly interested and so we do not attach any credit to her testimony on this point. Learned Counsel for the parties have commented upon the oral testimony on this point given by the witnesses of the other side. After we have gone in detail on this point, we find that the oral evidence adduced on behalf of the respondents superior to that adduced on behalf of. the appellants. Reference in this connection may be made to a decision of the Supreme Court in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and Ors. A.I.R. 1951 S.C. 102, where it was observed as follows:
The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate Ct. has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Ct. This certainly does not mean that when an appeal lies on facts, the appellate Ct. is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Ct. should not interfere with the finding of the trial Judge on a question of fact.
In the instant case also, the trial Judge has found it as a fact after having perused and examined the demeanour of the witnesses that Zainab was not legally married with Md. Yahya, and we find no reason to interfere with this finding. None of the comments on the witnesses made by Mr. Lakshman Saran Sinha, learned Counsel for the appellants, has been able to convince us to reverse the finding of the trial court. Having regard to the view which we have taken, it would be unnessary to dilate upon the question whether Zainab was married to Quadir Patwa as alleged by the learned Counsel for the respondents, or, whether she was the daughter of Ramju Molajada as, according to us, those questions are not relevant, nor they were the issues before the trial court. Suffice to hold that Zainab was not the legally married with Md. Yahya.
10. Mr. Lakshman Saran Sinha, however, submitted that in the instant case there are documentary evidence to establish that the appellants are the sons of Md. Yahya. In our opinion, that question is allied with the question which we have just decided as to whether Zainab was legally married with Md. Yahya. Since we have held that Zainab was not legally married with Yahya, it would be difficult to hold that the appellants who have stated, and it was their definite case that their mother was Zainab, were the sons of Md. Yahya through Zainab. Even then, it will be useful to examine those documentary evidence filed by the appellants to support their case that the appellants were described as the sons of Md. Yahya. Reference was made to the sale-deed (Ext. H) dated the 7th January, 1941 executed by Mahabir Singh and Dwarka Prasad in favour of appellant No. 2, Zahir and Batin. In the sale-deed, appellant No. 2 has been described as the son of Md. Yahya. Mr. Lakshman Saran Sinha laid emphasis upon the said recital made in the sale-deed in order to show that appellant No. 2 was described there clearly as son of Md. Yahya. In our opinion, no importance can be attached to the said recital, firstly, because what was the special source of knowledge of the executants, namely Mahabir Singh and Dwarka Prasad, to have made the said recital mentioning therein appellant No. 2 as the son of Yahya. Mr. Lakshman Saran Sinha submitted that it would be admissible under Section 32(5) of the Evidence Act so far as the statement of Mahabir Singh is concerned as he is reported to be dead. It was, however, pointed out to us that the other executant Dwarka Prasad is still alive, and no reason has been assigned as to why he was not examined. Even if we hold that it was admissible under Section 32(5) of the Evidence Act regarding the statement made by Mahabir Singh in the said sale-deed, according to us, it will not carry much weight. As Mr. Lakshman Saran Sinha failed to point out as to what happened about the subject-matter of the sale-deed, it may be a paper transaction as submitted on behalf of the respondents, though it relates to khata No. 328 and others covering an area of about 28 bighas and odd situated in village Rasalpur Bhadaur, Fergana Gyaspur. Besides, in this connection it would have been important if any written assertion or statement would have been made by Mr. Yahya, wherein he might have described the appellant as his son, but there is no such document produced on behalf of the appellants. Another document in this connection which was relied upon was Ext. H (1). It is another sale-deed in respect of an area of 4 bighas 10 kathas and 18 dhurs situated in village Rasulpur Bhadour bearing khata No. 321. This sale-deed dated the 2nd April, 1947 has been executed by Janki Mahton in favour of appellant No. 1 and one Mr. Sharfuddin son of Md. Zahir. In this deed also appellant No. 1 Is described as son of Md. Yahya; but, it may be noticed that in this case also the executant Janki Mahto is alive and there is no other executant except him vide the evidence of D. W. 14. This sale-deed (Ext. H/1) as also the other sale-deed (Ext. H) were marked on objection. Therefore, strictly speaking, Ext. H/1 would not even be admissible. Reliance was also palced on Ext. D which is an entry in the Admission Register of Sir Ganesh Dutt Patliputra High School, Patna, dated the 13th January, 1943. The relevant extract relates to serial Nos. 33 and 34. Under serial No. 33, the name of appellant No. 1 is mentioned, whereas under serial No. 34 the name of appellant No. 2 is noted, and in column No. 3 their father’s name is given as Md. Ehiya, and under column No. 5 the guardian’s name is given as Md. Zahir. It has come in evidence that Md. Zahir was one time Karpardaj living at Sarkarawan House at Patna of Md. Yahya and that his other two brothers, namely, Batin and Zahir also lived there Evidence has also been produced before us to show that from 1939 onwards some differences arose between Md. Yahya and his two brothers and subsequently the servants who were joint began to side with one of co-owner or others. According to the respondents, this Zahir was inimical to Md. Yahya and, therefore, in order to damage his interest he got an entry made in the Register (Ext. D) showing therein that Md. Yahya was the father of the appellants. On the other hand, Mr. Lakshman Saran Sinha submitted that at that point of time there was no enmity between Md. Yahya and his two brothers, and, therefore, Ext. D, he emphasized, carries weight and supports the case of the appellants that they are the sons of Md. Yahya. In our opinion, without deciding as to what was the motive of the local guardian, Zahir, to have got those entries made, suffice it to hold that nothing has been produced on the record to show that any such paper was signed by Mr. Yahya to show that the appellants were his sons as mentioned in the school register or in the admission register or even in those entries or to show that Md. Yahya had made Zahir their local guardian. Therefore, the entry made in Ext. D would not carry weight, and, from that entry, it would be difficult to hold that the appellants were the sons of Md. Yahya. Zahir alleged to be the local guardian of the appellants, since he is dead, was not examined on behalf of the appellants. However, they could have examined syed Shahid Hussain whose signature was obtained in column No. 13 of Ext. D., who is alive vide D. W. 6, page 97 of the Paper-book. Now, we turn to consider Ext. E, which is a character certificate granted by the Head Master of the Ganesh Dutt Patliputra High School dated the 26th November, 1959, Here also the appellants have been described as the sons of Md. Yahya. Apart from the fact that the Headmaster who granted the said certificate is alive as stated by D.W. 6 and he has not been examined in the case, this Ext. E as mentioned earlier, is dated the 25th November, 1959, which is obviously after the institution of the suit, the suit having been instituted on the 12th November, 1959. Therefore, its weight is negligible. Ext. E (i), another certificate granted to Md. Shafiuddin (appellant No. 1 by Mr. S.M. Shoaib, Honorary Magistrate, Biharaharifl, is dated the 4th April, 1955. This was also marked after objection. It may be noticed that L.M. Shoaib is still alive as stated by D.W. 21 and he has not been examined to show the special knowledge as is required under Section 50 of the Evidence Act. Therefore, in our view, this also is of no avail to the appellants. Ext. E (2) is still another certificate granted to appellant No. 1 by Sri L. Sinha, Registrar, Law Department, State of Bihar, wherein appellant No. 1 has been described as son, of Md. Yabya. This dated the 20th September, 1956. This was also marked after objection. In this case also, no explanation has been afforded by the appellants as to why Mr. Sinha was not examined. Another documentary piece of evidence is Ext. Q which is dated the 2yth October, 1953. It is an extract from the service-book of appellant No. 1. In the service book, the appellant got his father’s name entered as Md. Yahya. This has been proved by appellant No. 1 himself. No doubt, it is admissible, but according to us, it being a self serving document, it will not carry much weight. The next documentary evidence relied upon by the appellants is Ext. 1 which is a letter from Md. Yahya addressed to appellant No. 2 dated the 21st September, 1939. Learned Counsel for the appellants submitted that this letter was written obviously prior to the marriage of Yahya with respondent No. 1, Bibi Najma in September, 1947. Therefore, it throws light about the state of mind of Md. Yahya as how he was treating appellant No. 2 as his son. It will be useful to reproduce the relevant portion of the letter here:
My dear Faisal
blessings. You did not despatch Madina dated 17th. You should send the same after purchasing it. You should live there carefully. Treat it as important. You should regularly send ‘Inqilab’ paper and also send Madina. I will come to Patna (after) 2-4 days. You should always remain at the dera and go out only in the evening. Please see to it and live carefully. Md. Shaft is alright. Rest is well finish.
It may be noticed that the original is in Urdu which has been translated correctly by our Translator into English. On reading the contents, it would be difficult to come to the conclusion that the letter was addressed to his son. Learned Counsel for the appellants, however, submitted that the words indicated affection, but in our opinion the affection may be attributable to many other person’) apart from the son–may be to the friends, may be to the sons of friends, some relations, etc. There is nothing to indicate that Yahya meant in any way to describe appellant No. 2 as one of his sons. The other documents produced on behalf of the appellants are the rent receipts (Exts. C. series). Exts. C. C/1 and C/2 have been issued by Mebi Singh. Mebi Singh was discharged by Md. Yahya, and, therefore, he was a disgruntled employee as will be evident from the evidence of P.W. 24 who stated in evidence that he was dismissed in 1937. He used to look after the pairvi on behalf of Md. Yahya. He was in collusion with Zahir, Batin, Sari and Faisal. He retained papers of Yahya with him which were with him from before. Besides, it should be noted that these receipts bear a note which reads thus:
Be it noted that the village amlas have not been vested with the power to make settlement in respect of khudkast and bakast land, Ghair mazrua land of the malik and also the land appretaining to dilapidated house of tenants. Such settlement will always be made every year under parwana signed by the proprietors. If the amlas of the village will act contrary thereto or grant settlement receipt to the tenants in such case no interest whatever shall pass in favour of the tenants settlement holders. All such acts will be considered as illegal, null and void and false.
In that view of the matter, Mebi Singh had no authority to issue the printed receipts or to make settlement at the same time by issuance of receipt. Besides, it will be useful to notice the evidence of appellant No. I himself who was examined as D.W. 21. He stated in his evidence that no rent was ever paid by him to Mebi Singh or to Yahia concerning the settled land in 1946, 1947 and in 1954. He further stated that father, moaning Yahya, had asked Mebi to grant those receipts, and those receipts were granted to him in his name. He further stated that Yahya never put his signature on any receipt in his favour concerning the settlement of Bakasht land either in the beginning or even subsequently. Ext. C/3 is the receipt which was granted by the State of Bihar, and it bears No. 154593-54 and is dated the 3lst March, 1960, that is, after the institution of the suit. Therefore, its evidentiary value is negligible. Then is Ext. S/1, a judgment in Rent Suit No. 514/110 of 1943/46. In that suit, the plaintiff is Most. Bibi Rokaiya, step-sister of Most. Yahya, and the defendant is Mahabir Singh. In that suit, appellant No. 2 intervened as an intervenor defendant along with Zahir and Batin. Ext. Y (I) is the decree of the said rent suit. This was filed on behalf of the appellants to show that appellant No. 2 was the intervenor-defendant, and there he described himself as son of Md. Yahya. In our opinion, these documents are also of no avail to the appellants as clearly there appellant No. 2 has described himself as son of Md. Yahya. That will amount to a self-serving document, and it carries very little weight. Besides, as mentioned earlier, Md. Yahya was on fighting terms with his other brothers Zahir and Batil and against his step-sister Rokaiya.
11. As against the documentary evidence of the appellants, on behalf of the respondents some of the documents have been produced which clearly go against the contention of the learned Counsel for the appellants under this point. Reference may be made to Ext. 7 which is a station diary entry No. 840 of Pirbahore Police Station dated the 24th April, 1949. The informant of that sanha is no other person than Md. Yahya. He reported:
Md. Yahia s/o Molvi Rafiuddin (deceased) of Bakerganj, P.S. Pirbahore came to the P.S. and reported that to-day at about 9/30 A.M. Mohamad and Shafi who are the sons of his maid-servant assaulted him in his courtyard at the instigation of Batin who is his younger brother. They assaulted him with fists and kicks and with a lathi in his presence. The reason of assault is this that they were living with him and since a month they are not well and to-day they have come and demanded money from him for their personal use. He refused to give as they are committing nuisance hither and thither and are leading a vagabond life. The assault was witnessed by Nazim-uddin, Abdui Shakoor, Ayodhya Pd., Vakil, Ramdhani and Ram Das Goala of locality.
It may be noted that Mohamad is the alias name of Faisal (appellant No. 2) as stated by P.W. 24. This sanha is the direct statement from Md. Yahya, and it carries weight. Mr. Lakshman Saran Sinha on behalf of the appellants, however, submitted that Md. Yahya had Written this out of anger ; but, in our opinion as mentioned earlier, no document has been produced either a letter or any other document written by Md. Yahya describing therein the appellants as his sons, even during peace time, that is, when Md. Yahya used to bestow affection to the appellants. Another letter which throws some light that the appellants were not the sons of Md, Yahya is the letter of appellant No. 2 himself dated the 12th September, 1953 (Ext. 4/d) addressed to Md. Yahya. The address and the name of the person addressed to is given on the envelope marked Ext. 5 (c). The relevant portion of the letter reads thus:
I have performed this marriage because J have no guardian nor I have got any person of my own who will today or tomorrow get me married and to marry a Muslim girl is not within my ability to do it. In case of marriage along the Muslim question of caste and family of the boy and the girl arises. From the very beginning I was realising it and still I do it that I do not belong to any caste and this was the reason why I was being looked upon, as low Even now this is so and even you also followed this stand point. Now you itself tell me how it was difficult for me to marry a Muslim girl. Supposing if I had married a Muslim girl and said your name as father and you would have denied it flatly and told the truth then this marriage in that case also would have been difficult. Thinking over all these matters I instead of marrying a Muslim girl married a Hindu girl by converting her to Islam in which no question of caste or family arises.
Therefore, in our opinion, the appellants are not the sons of Md. Yahya; Therefore, point No. (ii) is also held against the appellants.
12. Now, we turn to consider point no (iii) Under this point, learned Counsel submitted that the trial court has erred in holding that Zainab was the concubine of Md. Yahya and the appellants were horn out of her womb; in other words, the appellants were the illegitimate sons of Md. Yahya. He submitted that this trial court has erred in doing so, because such a case was nut made out by either party in their pleadings nor any issue was framed, nor any evidence was led in this regard. In order to find support to the submissions he referred to the decision in Messrs Trojan & Co. v. R.M.N.N. Nagappa Chettiar , where their Lords at page 240 observed:
It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case.
Learned Counsel for the respondents also concedes that the trial court has erred in that regard. In that view of the matter, we are of the view that part of the judgment cannot be upheld and the finding of the trial court to that extent is modified.
13. Then we advert to consider the submission of learned Counsel under point No. (iv). He submitted that since Md. Yahya and Zainab were living as husband and wife for sufficiently long time, the court below ought to have presumed under Section 114 of the Evidence Act that they were legally married and children so born out of their union were legitimate children. In our view, this submission of the learned Counsel for the appellants is devoid of merit, as we have just now held that no decision can be based on grounds outside the pleadings of the parties. In the instant case, there was no such pleading, nor any evidence was led that both of them were living as husband and wife. None of the witnesses have said so, nor the learned Counsel has been able to point out any such evidence on the record. Reference may be made to the case of Gokal Chand v. Parvin Kumari A.I.R. 1952 S.C. 231, where their Lordships, Fazl Ali and Bose, JJ. while considering the provisions contained in Section 114 of the Evidence Act, observed that continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years might raise the presumption of marriage ; but the presumption which might be drawn from long cohabitation was rebuttable, and if there were circumstances which weakened or destroyed that presumption, the Court could not ignore them. A similar view was taken in the case of Mohd. Amin and others v. Vakil Ahmad and Ors. . The main pivot in cases of paternity and leigitimacy is marriage, it is so also in the case of an acknowledgment. We have already held that there was no marriage between Zainab, the mother of the appellants and Md. Yahya. In Habibur Rahman v. Altaf Ali (1921) 48 I.A. 114 120, it was held as follows:
By the Mahomedan 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.
Therefore, the submissions of learned Counsel for the appellants under this point also are not tenable.
14. Lastly, we come to the last submission under point No. (v) which is regarding acknowledgment. He submitted that by the various deeds and actions, Md. Yahya had acknowledged the appellants as his sons, and, in this conection, reliance was placed on a decision in Ahasanulla v. Nejabatali and Ors. A.I.R. 1929 Cal. 682, where Mukerji, and Mitter, JJ. observed that a declaration by a person that another person was his legitimate son born of his loins and in the womb of his married wife was an acknowledgment not merely of sonship but of legitimate sonship ; and, if direct evidence of marriage was adduced and the Court disbelieved it the effect of presumption arising from the acknowledgment was not lost and the failure did not absolve the opposite party from disproving or proving the impossibility of marriage and thereby rebutting the presumption. In our opinion, the observation made there, is not applicable in the instant case. It may be noticed that we have already discussed in detail that the appellants failed to establish that Zainab was married with Yahya. That apart, in the Instant case there is not a chit of paper to show that actually Md. Yahya had ever acknowledged the appellants as his sons, rather there are only oral evidence of the appellants which we have discussed and disbelieved. Further, as held in Razia Begum v. Sahebzadi Anwar Begum A.I.R. 1958 A.P. 195, “acknowledgment or prolonged cohabitation as husband and wife raises a mere presumption. So, where evidence has been led that there was no marriage at all when the children were begotten, the issue cannot possibly be legitimated by acknowledgment.” Therefore, thus there is no merit in the submission of the learned Counsel for the appellants in this regard either.
15. In the result, after a careful consideration, we dismiss the appeal and affirm the judgment and decree passed by the trial court with the modification indicated above. In the circumstances, however, there will be no order as to costs of this Court.