Judgement Appeal from a decree of the Court of the Judicial Commissioner (May 31, 1899) reversing a decree of the Subordinate Judge of Barabanki (Dec. 16, 1896) and decreeing the respond ents’ suit as prayed. The suit was brought to recover the estate of Ghulam Ali, a Mahomedan, who died on November 14, 1892. The respondents claimed as his legal heirs, alleging that the appellant, who was sued under the guardianship of her mother Ghafooran, had no title. The appellant claimed as daughter of Ghulam Ali by his wife Ghafooran, and the main question at issue was whether there had been a valid marriage between Ghulam and Ghafooran. The Subordinate Judge found that the evidence on the record shews " that Ghafooran first entered into Ghulam Alis service as a female servant when his wife was alive; upon the latters death he began to have a fancy for her. Her husband suspected illegal connection and divorced her; then Ghulam Ali took her as a wife and contracted nikah; that some years after, defendant was born and brought up as his child. Ghafooran in her prime of life left her husband Eda and lived with Ghulam Ali, a widower, for sixteen years until his death, and they lived alone in the house having no other member of the family. Defendant is born and brought up in Ghulam Alis house as his child. The Mahomedan law under such circumstances presumes a marriage between parties who live together as man and wife, and also legitimacy of the child born under such circumstances see Tagore Law Lectures, 1873, p. 126. Defendant is born and brought up in Ghulam Alis house as his child. The Mahomedan law under such circumstances presumes a marriage between parties who live together as man and wife, and also legitimacy of the child born under such circumstances see Tagore Law Lectures, 1873, p. 126. Here there is direct evidence besides of Ghafoorans nikah with Ghulam Ali and defendants birth long after as his child." The Judicial Commissioners found—(1.) that Ghafooran was not divorced by Eda, and was not married to Ghulam Ali as alleged ; (2.) that Ghafooran lived in concubinage with Ghulam Ali, and that the defendant was his daughter, but not his legitimate daughter; (3.) that Ghulam Ali acknowledged her as his daughter; but " that as Ghafooran was the wife of Eda, and therefore could not lawfully be married to him, and con sequently could not bear him legitimate issue, the defendant could not be legitimated by any acknowledgment by Ghulam Ali." They discredited the evidence accepted by the Court below, mainly on two grounds—first, that Ghafooran was not called; second, that in a deposition before a magistrate in 1890, long after the alleged divorce and remarriage, she was described as being then the wife of Eda, the former husband, as follows— " Musammat Ghafooran, wife of Eda, caste Sheikh, age forty years, of Dewa." In her deposition she said " I have lived with Ghasetay (i.e., Ghulata Ali) these twelve or fourteen years. I lived with him before his wife died—two years before that event.” Cowell, for the appellant, contended that an admission by a next friend was not binding, and in any event that this heading was inadmissible in evidence see ss. 17, 19, and 80 of the Evidence Act, and Taylor on Evidence, s. 742. It was not part of the deposition required to be read over to the witness, and there was no evidence as to how it got there, or whether her attention had been drawn to it see s. 356 of the Criminal Procedure Code as to the mode of taking depositions. As the criminal proceeding in which the deposition was taken related to the witnesss daughter by Eda, the magistrates clerk must have assumed that she was Edas wife, and the mistake is further shewn by the name of one husband being given and the caste of the other. As the criminal proceeding in which the deposition was taken related to the witnesss daughter by Eda, the magistrates clerk must have assumed that she was Edas wife, and the mistake is further shewn by the name of one husband being given and the caste of the other. Further, Ghafooran was not a party to this suit, and the appellant was not affected by her statement not given in her sworn deposition. This statement is the main reason for rejecting the direct evidence, which, if believed, was conclusive of divorce and remarriage. The legal presumption was in favour of marriage and legitimacy see Mahomed Banker Houssain Khan v. Shurfoonnissa Begum (( 1860) 8 Moores Ind. Ap. Ca. 136.); Khajah Hidayat Oollah v. Rai Jan Khanum (( 1844) 3 Moores Ind. Ap. Ca. 205, 316.); Nawab Muhammad Azmat Ali Khan v. Lalli Begum. (( 1881) L. R. 9 Ind. Ap. 8.) De Gruyther, for the respondents, contended that the negative of the appellants contention was placed beyond reasonable doubt by this former deposition of Ghafooran, who had not been called as a witness to explain it, and had not been examined as a witness in support of her own divorce and remarriage. The deposition also contained the statement that she lived with the deceased, without saying that she was his wife, as she would have said had she been married to him. He referred to the Indian Evidence Act, ss. 3, 11, 80, and 114, and to Abdool Razack v. Aga Mahomed Jaffer Bindaneem (( 1894) L. R. 21 Ind. Ap. 56, 69.), as to the law of acknowledgment of legitimacy and sonship, and as to the mode in which the presumption in favour of marriage may be rebutted. Cow ell replied. 1903. Nov. 10. The judgment of their Lordships was delivered by LORD MACNAGHTEN. In this case the Subordinate Judge of Barabanki found that the appellant Musammat Maqboolan, sued as a minor under the guardianship of her mother Ghafooran, was the legitimate offspring of Ghulam Ali, who died intestate in 1892 without leaving any other issue, and that she was consequently entitled to succeed to the property of which Ghulam Ali died possessed. In this case the Subordinate Judge of Barabanki found that the appellant Musammat Maqboolan, sued as a minor under the guardianship of her mother Ghafooran, was the legitimate offspring of Ghulam Ali, who died intestate in 1892 without leaving any other issue, and that she was consequently entitled to succeed to the property of which Ghulam Ali died possessed. The Judicial Commissioners on appeal reversed this finding and adjudged the property to the respondents, who were plaintiffs in the suit, and whose title as heirs to Ghulam Ali in default of issue of his body is not now in dispute. Both Courts have held that Maqboolan is the daughter of Ghafooran by Ghulam Ali. The question is whether she was born in lawful wedlock. That depends upon whether her mother Ghafooran was free to marry and did in fact marry Ghulam Ali. It is common ground that Ghafooran, when first heard of in this case, was the wife of a person now living—one Eda, a Sepahi, a man of a class inferior to that of Ghulam Ali, who was a Sheikh. She had four children by Eda. Having been deserted by her husband at a time when there was famine in the land, she took service with Ghulam Ali. That was some sixteen years before his death. Ghulam Alis first or only wife, Mashukan, was then living. Mashukan died in 1878, and Ghafooran continued to live on in Ghulam Alis service. She lived with him till his death. She is described as an attractive person, and there was no other woman in the house. The case on behalf of Maqboolan is that some time after Mashukans death Eda returned home, and then there was a quarrel between Eda and his wife. Either he suspected her of too great intimacy with Ghulam Ali, or she charged him with familiarity with some prostitute, or, more probably, there were mutual recriminations. At any rate she refused to leave Ghulam Alis house for Eda. She was not going to starve with him. That was her answer (says one witness) to her husbands appeals. So he divorced her, and after the divorce Ghulam Ali married her by the rite or ceremony called Nika. In support of these allegations there is oral evidence direct and positive. Eda himself and one other witness speak to the divorce. She was not going to starve with him. That was her answer (says one witness) to her husbands appeals. So he divorced her, and after the divorce Ghulam Ali married her by the rite or ceremony called Nika. In support of these allegations there is oral evidence direct and positive. Eda himself and one other witness speak to the divorce. Seven witnesses, one of whom says that, he performed the ceremony of reading the Nika, speak to the marriage. It is quite true that these witnesses cannot be regarded as independent witnesses. But they do not seem to have been shaken on cross-examination, and the Subordinate Judge, who heard what they said and saw their demeanour, accepted their statements. It would be out of the question to reject their evidence on mere suspicion. The story in itself is not improbable. It is difficult to see what further or better evidence could have been offered assuming the story to be true. According to the evidence no register of marriages or divorces was kept then. A marriage such as that set up on behalf of the appellant—a marriage with a woman of his own household and of inferior birth—would presumably not have been celebrated with any sort of pomp or ceremony. There was no music, said one witness, or feasting either. Besides, Ghulam Ali seems to have led a very retired life. He had little intercourse with his neighbours, and none at all with the respondents, who lived at a considerable distance and apparently never came near him. Whatever his relations towards Ghafooran before his alleged marriage may have been, he bore the reputation of a religious and respectable person. Then there is some evidence that he treated Ghafooran as his wife. As to Maqboolan, she was born in his house. In her case he performed the ceremonies usual in the case of a legitimate daughter. He had her well educated and taught to read Urdu and Persian. The Judicial Commissioners, who reject the evidence of the witnesses at the trial, comment on the fact that various reasons are assigned for the alleged quarrel between Eda and his wife. Perhaps it is not surprising that Eda should have attempted to clear himself at the expense of his wife, while Ghafoorans adherents put the blame on him. The Judicial Commissioners, who reject the evidence of the witnesses at the trial, comment on the fact that various reasons are assigned for the alleged quarrel between Eda and his wife. Perhaps it is not surprising that Eda should have attempted to clear himself at the expense of his wife, while Ghafoorans adherents put the blame on him. Then the Judicial Commissioners point out that the witnesses who deposed to Ghafoorans marriage with Ghulam Ali could not fix the year or even the season of the year when it took place. That does not seem very extraordinary. After the lapse of so many years, when there was nothing in the circumstances of the marriage to impress their memory, they may well have borne in mind that there was a marriage without being able to recall anything in particular about it. With more reason the Judicial Commissioners comment on the circumstance that the person who states that he read the Nika was not the regular qazi, but the naib or deputy of the qazi, and they justly observe that the reason alleged for the intervention of the deputy is not satisfactory. No doubt this circumstance is suspicious; but the man was examined before the Subordinate Judge, who saw no reason to disbelieve him. Although the Judicial Commissioners, upon these grounds and on a general view of the position of the witnesses, thought themselves justified in describing the oral evidence as of little value, it does not appear that they would have differed from the Subordinate Judge if they had not come to the conclusion that the whole of the evidence adduced on behalf of the appellant was displaced by a document put in evidence by the respondents to which the Subordinate Judge—erroneously, as they thought—attached little or no importance. The document in question is a certified copy of a statement by Ghafooran taken before Lieutenant-Colonel E. E. Grigg, Deputy Commissioner of Barabanki, on April 30, 1890, on the occasion of a criminal charge brought at the instance of Zainab, one of Ghafoorans daughters by Eda, against her husband, Ali Husain, for an assault. The heading of that statement is in these words " Musammat Ghafooran, wife of Eda, caste Sheikh, age forty years, of Dewa, on solemn affirma tion," and it contains the following passage " I have lived with Ghasetay"—that is Ghulam Ali—" these twelve or fourteen years. The heading of that statement is in these words " Musammat Ghafooran, wife of Eda, caste Sheikh, age forty years, of Dewa, on solemn affirma tion," and it contains the following passage " I have lived with Ghasetay"—that is Ghulam Ali—" these twelve or fourteen years. I lived with him before his wife died—two years before that event." This document was included in the list of documents filed with the plaint, but it does not seem to have been referred to in the course of the trial until the pleader for the plaintiffs was in the act of addressing the Court after the evidence was closed. The pleader for the defendant objected that it was inadmissible. On behalf of the plaintiffs it was contended that Ghafooran, defending as guardian of Maqboolan, was a party to the suit, and that under the Indian Evidence Act the statement was admissible as an admission by her. The Subordinate Judge ordered it " at present .... to remain on the file for what it is worth." In the judgment which he afterwards delivered the learned Judge seems to have con sidered the document admissible, but his opinion was that the heading of the statement was not part of Ghafoorans deposition, and it does not seem to have occurred to him that the statement in the deposition, that the deponent was living with Ghulam Ali and had been living with him for fourteen years, was susceptible of the meaning that she was living with him in adultery. The Judicial Commissioners, however, held that " Ghafooran must have been questioned by the magistrate as to her name, husbands name, caste, age, and residence. The Judicial Commissioners, however, held that " Ghafooran must have been questioned by the magistrate as to her name, husbands name, caste, age, and residence. Her answers," they go on to say, " were a part of the deposition as much as any other answer." Proceeding on this view, they held that Ghafoorans statement was " fatal to the case of the defendant that Ghafooran was divorced by Eda and subsequently married Ghulam Ali." Accordingly they found that" she was not divorced by Eda and was not married to Ghulam Ali," and that when she said she had "lived" with Ghulam Ali for twelve or fourteen years and had done so for two years before the death of his wife, she meant that " she had cohabited with him." It appears to their Lordships that the construction which the Judicial Commissioners have put upon her language is harsh and uncalled for. She seems for some reason or other to have been asked how long she had been living with Ghulam Ali, and to have answered correctly enough, "for twelve or fourteen years." It is difficult to suppose that the magistrate, if it was the magistrate by whom the question was asked, intended to convey any imputation on the witness, and equally difficult to suppose that the witness intended by her answer to make a confession of immorality. As regards the description of the witness in the heading of the deposition, their Lordships agree with the Subordinate Judge that it is no part of the deposition proper—that is, no part of the evidence given by the witness on solemn affirmation. It may have been elicited by questions put by the magistrate. It is just as likely that it was filled in by a subordinate official and on the paper when put into the hands of the magistrate for him to take down the evidence of the witness. Again, it may have been read over to the witness by the magistrate when the evidence of the witness was completed, or the magistrate may have contented himself with reading over the narrative embodying the evidence, which was all he was bound to do under the Act. Again, it may have been read over to the witness by the magistrate when the evidence of the witness was completed, or the magistrate may have contented himself with reading over the narrative embodying the evidence, which was all he was bound to do under the Act. In these circumstances, even assuming that there was no slip or accidental omission in the heading of the document and that there was no confusion between the two husbands in the mind of the person who took down the heading, and assuming that the document is admissible in this suit as evidence against Maqboolans claim, their Lordships are of opinion that it is not entitled to any weight. Differing from the Judicial Commissioners on the only ground upon which they appear to have relied in reversing the Court of first instance, their Lordships see no reason for not accepting the finding of the Subordinate Judge. Their Lordships will, therefore, humbly advise His Majesty that the decree of the Court of the Judicial Commissioners ought to be reversed with costs and the judgment of the Subordinate Judge restored. The respondents will pay the costs of the appeal.