They also companytended that the deed of settlement embodied the terms of a family settlement which had been bona fide arrived at between the parties in regard to the disputed claims to the estate of Haji and was binding on the plaintiffs.
prohibited relation ship between the parties, the woman being an undivorced wife of a husband who was alive and the like.
The plaintiff 5 and Haji had however lived together as man and wife for 23 to 24 years and the plaintiffs 1 to 4 were born of that union.
They denied that the plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 were the legitimate children of Hail.
The defendants 1 to 5 obtained leave to appeal to His Majesty in Council and the appeal was admitted on the 10th January, 1947 Shri S.P. Sinha who appeared for the defendants 1 to 5 before us has urged the self same two questions, namely, 1 Whether the deed of settlement is binding on the plaintiffs and 2 Whether the plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 are the legitimate children of Haji.
Was the said deed insufficiently stamped?
Was it benefi cial to the minor plaintiffs ?
It is significant to observe that the defendants 6 and 7 who were the admitted heirs of Haji did number companytest the plaintiffs claim at all.
As regards defendants 1 to 5 it was held that there was numberconsideration whatsoever which companyld in any way support the arrangement.
Having thus discredited the theory of the first mar riage of the plaintiff 5 with Alimullah the High Court came to the companyclusion that it was fully established that Musam mat Rahima Bibi was the lawfully wedded wife and that the plaintiffs 1 to 4 are the legitimate children of Haji.
In this state of the evidence one cannot but hold that this story of the marriage with Alimullah was purely an after thought on the part of the defendants 1 to 5 and it was invented only to get rid of the strong presumption under the Mahomedan law in favour of the paternity of plaintiffs 1 to 4 and the lawful wedlock of the plaintiff 5.
As regards the first issue there was numberdocument evi dencing the marriage between the plaintiff 5 and Haji.
212 of 1942 arising out of the Judgment and Decree dated the 28th February, 1942, of the Court of the Civil Judge of Azamgarh in Original Suit No.
The only defendants who companytested the claim of the plaintiffs were the defendants 1 to 5.
Appeal from the Judgment and Decree dated the 11h September, 1945, of the High Court of Judicature at Allaha bad Brand and Waliullah JJ.
On the question of marriage and legitimacy the High Court came to the companyclusion that ii the trial Court had companysidered the question of onus in its proper light and given the plaintiffs the benefit of the initial presumption in favour of legitimacy and lawful wedlock under the Mahomedan law, he would have recorded a finding in their favour.
1136 The two issues which were mainly companytested before the trial Court were, I Whether the plaintiffs 1 to 4 are the legitimate issue of and the plaintiff 5 is the wedded wife of Abdul Rahman deceased Whether the agreement dated 5th April, 1940, was executed by the plaintiffs after understanding its companytents fully or was obtained from them by fraud or undue influence ?
The defendant 8 a daughter of the plaintiff 5 whose paternity was in dispute was added as a party defendant to the suit, the plaintiffs claiming that she was the daughter of the plaintiff 5 by Haji and the defendants 1 to 5 alleging that she was a daughter of the plaintiff 5 by her former husband Alimullah.
The defendants to 5 had alleged that at the time of the companymencement of sexual relations between the plaintiff 5 and Haji, plaintiff 5 was the wife of one Alimullah who was alive and that therefore the company nection between the 1138 plaintiff 5 and Haji was in its origin illicit and companytinued as such, with the result that the presumption in favour of a marriage between the plaintiff 5 and Haji and in favour of the legitimacy of plaintiffs 1 to 4 would number arise.
It was further held that the plaintiff 3 who would be about 9 years of age at the time of the execution of the deed was repre sented in the transaction by his brother who companyld number be the legal guardian of his property and that the deed in so far as it adversely affected the interest of plaintiff 3 would number be binding on him.
51 of 1951.
4 of 1941.
Plaintiffs 4 and 5 being Purdanashin ladies, it was found that they had numberchance at any stage of the transaction of getting independent advice in regard to the companytents or the effect of the document which they were executing and that even if the deed were valid otherwise it would number be binding on them.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
After companysidering the several authorities on the binding nature of family settlements cited before it came to the companyclusion that it did number bind the plaintiffs.
There was thus a strong presumption of the marriage of Haji with plaintiff 5 having taken place and of the legitimacy of plaintiffs 1 to 4.
On these allegations the plaintiffs filed on the 25th Novem ber, 1940, in the Court of Civil Judge of Azamgarh the suit out of which the present appeal arises against the defend ants 1 to 5 and defendants 6 and 7 for a declaration that the deed of settLement dated 5th April, 1940, be held to be invalid and to establish their claim to their legitimate shares in the estate of Haji under Mohammedan Law.
in First Appeal No.
The judgment of the Court was delivered by BHAGWATI J. This is an appeal from the judgment and decree of the High Court of judicature at Allahabad which set aside a decree passed by the Civil Judge of Azamgarh decreeing the plaintiffs claim.
K. Daphtary Nuruddin Ahmed, with him for the re spondents.
The plaintiffs filed an appeal to the High Court of Judicature at Allahabad.
One Haji Abdur Rahman, hereinafter referred to as Haji a Sunni Mohammedan, died on the 26th January, 1940, leaving behind him a large estate.
He left him surviving the plain tiffs 1 to 3, his sons, plaintiff 4 his daughter and plain tiff 5 his wife, defendant 6 his sister, defendant 7 his daughter, by a predeceased wife Batul Bibi and defendants 1 to 4 his nephews and defendant 5 his grand nephew.
Oct. 22.
P. Sinha Shaukat Hussain, with him for the appel lants.
