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![handle is hein.slavery/ssactsengr0614 and id is 1 raw text is: ASHRUFOOD D. A. H. KHAN V. H. H. KHAN [1866] XI MOORE IND. APP., 94
principle which is applicable to the matter, or of the legal effect of this deed of
March, 1834. It operated in law as a conversion of the character of the property and
an alteration of the title of the family, converting it from a joint to separate owner-
ship, and we think the conclusion of law is correct, viz., that that is sufficient to
make a divided family, and to make a divided possession of what was previously
undivided, without the necessity of its being carried out into an actual partition of
the subject-matter.
Upon all these grounds we concur with the decisions of the Courts below, and
we think it right to advise Her Majesty to dismiss this appeal, and to dismiss it
with costs.
As the Appellant admitted, with great propriety, that, provided the conclusion
of their Lordships was that the property was divided, then the shares which lie now
claims have followed a course of descent with which he has no right whatever to
interfere,-we say nothing upon the question of adoption. Her Majesty's Order will
merely confirm the decree of the Court below.
[See Rajah Surareni Vencata Gopala Narasimha. Row, Bahadoor, v. Rajah Suraneni
Lakshma Venkama, Row, 1869, 13 Moo. Ind. App. 138; Rani, Chande- Dutt
v. Chwnder Coomar Mundul, 1869, 13 Moo. Ind. App. 181; Runjeet Singh v.
Kooer Gujraj Sin gh., 1873, L.R. 1 Ind. App. 9; Baboo Doorga Pershad v.
Afussumnat Kuvdun Koowar, 1873, L.R. 1 Ind. App. 55; Girdlharee Lall v.
Ka'ntoo PIll, 1874, L.R. 1 Ind. App. 329 ;Anmeeroonissa Khatoo v. Abedoonxissa
Khatoon, 1874-75, L.R. 2 Ind. App. 99 ; Chidumbaram Chettiar v. Gori Nachiar,
1879, L.R. 6 Ind. App. 181.1
[94] ASHRUFOOD DOWLAH AHMED HOSSEIN KHAN BAHADOOR, and
WAZEEROON NISSA BEGUM,-Appelhn.ts; RYDER HOSSEIN KHAN,
alia s ACHEY SAHIB,--Respondent * [Nov. 25, 1866].
On. appeal from the Court of the Judicial Co,'nr4.s'iov.er of Oude.
According to the Mahomedan law, 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 is not ante-dated by relation.
Ani ante-nuptial child is illegitimate; a child born out of wedlock is il-
legitimate, but if acknowledged by the father he acquires the status of
legitimacy. Such acknowledgment may be express or implied, directly
proved or presumed [11 Moo. Ind. App. 113, 114].
By the same law, the denial of a son either of Nikalee (regular), or Mootahar
(irregular) marriage after an established acknowledgment, is untenable,
though supported by a deed of disclaimer and repudiation by the father
[11 Moo. Ind. App. 111, 112].
Suit by the son and daughter of A., a Mahomedan of the Sheah sect, claiming as
his sole heirs, for a declaration of the illegitimacy of B., who claimed to be
also a son of A., and co-heir, as the issue of a Moottah, or inferior marriage,
and as having been acknowledged by A. in the lifetime as his son. Such
marriage not having been proved to have taken place previous to the birth
of B. and the acknowledgment of the sonship not being satisfactorily proved,
held by the Judicial Committee, reversing the decision of the Court of the
Judicial Commissioner of Oude, that B. was not intitled to any share of the
property of A., notwithstanding that he had been put in possession of a
third by a decree in a summary suit for the administration of A.'s estate.
Held also that the onus of proof of his illegitimacy was upon the Plaintiffs in
such subsequent suit [11 Moo. Ind. App. 108, 109].
Present: Members of the Judicial Committee,-The Right Hon. Lord West-
bury, the Right Hon. Sir James William Colvile, and the Right Hon. Sir Edward
Vaughan Williams. Assessor,-The Right Hon. Sir Lawrence Peel.
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