Judgement Appeal (No. 54 of 1920) from a judgment and decree of the High Court (August 1, 1918) affirming a decree of that Court in its original civil jurisdiction (May 14, 1917). The first appellant instituted a suit against the respondents claiming to be the sole heir of Nawab Sobhan of Bogra ; the deceased Nawab was a Sunni Mohammedan. A second plaintiff to whom Habibur had transferred part of his claim was joined, but for convenience Habibur is hereinafter referred to as the appellant or the plaintiff. The plaint alleged that the plaintiff was the son of the Nawab by his second wife one Mozelle Cohen, a Jewess converted to Mohammedanism. The respondents by their defence denied that the Nawab and Mozelle Cohen were married and alleged that the plaintiff was an illegitimate son of the Nawab by Mozelle Cohen. After the hearing was commenced the plaint was amended by alleging that the Nawab had acknowledged the plaintiff as his son, and stating that if the marriage was not proved Law. Rep. 48 Ind. App. 114 ( 1920- 1921) Habibur Rahman C howdhury V. Altaf Ali C howdhury 26 reliance would be placed upon the acknowledgment as establishing the plaintiffs legitimacy. Three of the issues framed were (1.) Was Mozelle Cohen married to Sobhan ? (2.) If so, was Habibur the legitimate son of Sobhan and Mozelle Cohen ? (6.) Was there any acknowledgment as pleaded, if so, what is its legal effect ? The trial judge (Greaves J.) found upon the first issue that Mozelle Cohen was not married to the deceased Nawab, and on the second that Habibur was not their legitimate son. On the sixth issue he found that though the Nawab had not acknowledged Habibur as a son generally, he had done so on two occasions, but the learned judge said that he did not find that those acknowledgments were made with the intention of conferring legitimacy upon the plaintiff. Upon those findings, after a consideration of the law applicable, the suit was dismissed. An appeal, heard by Sanderson C.J. and Woodroffe and Chitty JJ., was unanimously dismissed. The Chief Justice and Chitty J., in separate judgments, each found that the alleged marriage was disproved, and held that that being the case the suit failed, since the plaintiff could not by any acknowledgment be rendered legitimate. An appeal, heard by Sanderson C.J. and Woodroffe and Chitty JJ., was unanimously dismissed. The Chief Justice and Chitty J., in separate judgments, each found that the alleged marriage was disproved, and held that that being the case the suit failed, since the plaintiff could not by any acknowledgment be rendered legitimate. Woodroffe J. held that no acknowledgment made with the intention of conferring legitimacy had been proved ; he accordingly agreed that the appeal should be dismissed. The judgments, both at the trial and upon the appeal, are reported at I. L. R. 46 C. 259. 1921. Sir John Simon K.C., De Gruyther K.C., and S. Hyam (Dube with them) for the appellants. The evidence established that the deceased Nawab acknowledged the plaintiff as his son, and did so in such circumstances as to show that the acknowledgment was of him as a legitimate son. In Mohammedan law an acknowledgment of paternity forms part of the substantive law of status, and is not merely of evidential application. That being so, proof of absence of a marriage is not material. Once legitimacy is established in law it is illogical to inquire whether the parents were married. It is conceded that an acknowledgment does not confer legitimacy if the respective ages of the supposed parents renders the truth of the statement impossible, or if a marriage between the supposed parents was impossible in law; none of these circumstances arise in this case. [Reference was made to Oomda Beebee v. Shah Jonah Ali (( 1866) 5 Suth. W. R. 132.), Bibee Nujeeboonissa v. Bibee Zumeerun (( 1869) 11 Suth. W. R. 426, 427.), Jaibun v. Bibee Nujeeboonnissa (( 1869) 12 Suth. W. R. 497.), Bibee Wuheedun v. Wusee Hossein (( 1871) 15 Suth. [Reference was made to Oomda Beebee v. Shah Jonah Ali (( 1866) 5 Suth. W. R. 132.), Bibee Nujeeboonissa v. Bibee Zumeerun (( 1869) 11 Suth. W. R. 426, 427.), Jaibun v. Bibee Nujeeboonnissa (( 1869) 12 Suth. W. R. 497.), Bibee Wuheedun v. Wusee Hossein (( 1871) 15 Suth. W. R. 403.), Muhammad Allahdad Khan v. Muhammad Ismail Khan (( 1888) I. L. R. 10 A. 289.), Nawab Muhammad Azmat Ali Khan v. Lalli Begum (( 1881) L. R. 9 I. A. 8.), Syed Sadakut Hossein v. Syed Mahomed Yusoof (( 1883) L. R. 11 I. A. 31.), Irshad Ali v. Kariman (( 1917) 22 C. W. N. 530.), Sadik Husain Khan v. Hashim Ali Khan (( 1916) L. R. 43 I. A. 212.), Baillies Digest of Mohammedan Law, 2nd ed., c. 2, s. 2, Wilsons Anglo-Mohammedan Law, § 85.] The Board in the above-cited appeal in 1881 (L. R. 9 I. A. 8, 18.) expressly affirmed a passage in the judgment of the Board in Ashrufood Dowlah Ahmed Hossein Khan v. Hyder Hossein Khan (( 1866) 11 Moo. I. A. 94, 113.) in which a child upon acknowledgment is said " to acquire the status of legitimacy." The judgments in 11 and 12 Suth. W. R. took the same view. In Muhammad Allahdads Case (( 1888) I. L. R. 10 A. 289.) it had been found as a fact that the son was not the child of the person who acknowledged; that decision therefore does not affect the view that an acknowledgment establishes the validity of the marriage. The view expressed by Mahmood J. relates to cases in which the terms of the acknowledgment preclude the idea that a valid connection existed. The present question did not arise in the appeal before the Board in 1916 (L. R. 43 I. A. 112.) ; the acknowledgment there establishing the legitimacy contested. The evidence in the present case did not suggest the view that Mozelle Cohen was a prostitute, nor did it disprove that she and the Nawab were married according to Mohammedan law. Law. Rep. 48 Ind. App. 114 ( 1920- 1921) Habibur Rahman C howdhury V. Altaf Ali C howdhury 27 Upjohn K.C., Dunne K.C., and Parikh for the respondents. There were concurrent findings that the Nawab and Mozelle Cohen were not married. That being the case the authorities show that no acknowledgment could make the plaintiff legitimate. Law. Rep. 48 Ind. App. 114 ( 1920- 1921) Habibur Rahman C howdhury V. Altaf Ali C howdhury 27 Upjohn K.C., Dunne K.C., and Parikh for the respondents. There were concurrent findings that the Nawab and Mozelle Cohen were not married. That being the case the authorities show that no acknowledgment could make the plaintiff legitimate. The judgment of the Board in Sadik Husain Khan v. Hashim Ali Khan (L. R. 43 I. A. 212, 234.) states the Mohammedan law as being well established that " no statement made by one man that another (proved to be illegitimate) is his son can make that other legitimate." An acknowledgment does not effect a legitimation, it merely raises a rebuttable presumption of a marriage. In Ashrufoods Case (11 Moo. I. A. 94.) the existence of a mutta marriage was admitted, and any argument based upon the use of the word " acquired " in the passage relied on is con tradicted by earlier passages in the judgment (e.g. at p. 104). The text of the Birjandi quoted by Mahmood J. in Muhammad Allahdad Khan v. Muhammad Ismail Khan (I. L. R. 10 A. 289, 309.) shows that in Mohammedan law an acknowledgment does not create a new right. All three judgments in that case affirm the view that an acknowledgment is effectual only in cases where the existence or non-existence of a marriage is in doubt. In the appeals before the Board reported at L. R. 9 I. A. 8 and L. R. 11 I. A. 31 the marriage was not disproved, it was alleged but not established by the evidence. There is no case in which the marriage being disproved an acknowledgment has been held to effect a legitimation. [Reference was also made to Aizunnissa Khatoon v. Karimunnissa Khatoon (( 1895) I. L. R. 23 C. 130.), Dhan Bibi v. Lalon ibi (( 1900) I. L. R. 27 C. 801.) and Ameer Alis Mohammedan Law, 4th ed., p. 257.] If the respondents fail in law in their contention that no acknowledgment could be effectual, they succeed upon the facts, since it was concurrently found that the evidence did not establish that the Nawab acknowledged the plaintiff as his legitimate son. De Gruyther K.C. replied. March 9. The judgment of their Lordships was delivered by LORD DUNEDIN. De Gruyther K.C. replied. March 9. The judgment of their Lordships was delivered by LORD DUNEDIN. In this suit the plaintiff and appellant Habibur Rahman Chowdhury, claims a declaration that he is the legitimate son of the late Nawab of Bogra, who died intestate on July 2, 1915. The suit is opposed by the late Nawabs grandson, who is the son of a legitimate daughter, and by two nephews, the sons of an elder brother. The plaintiff is admittedly the natural son of the late Nawab, his mother having been a Jewess, Mozelle Cohen, who became a Mohammedan and cohabited with the Nawab. He was born in 1893. The Nawab had a daughter by the same lady in 1891. The Nawabs legitimate wife, the grandmother of the first defendant, died in 1890. The plaintiff based his claim on two grounds. He averred first that Mozelle was married to the Nawab. He further averred that on many occasions the Nawab had acknowledged him as his legitimate son. The defendants aver that no marriage ever took place. They also deny that any proper acknowledgment of legitimacy was made. The case went to trial before Greaves J., and oral evidence was led and documentary evidence produced on both sides. Greaves J. held that no marriage was proved, but that, on the contrary, it was proved that Mozelle Cohen was no better than a prostitute and that no marriage ever did take place. He held that the Nawab did acknowledge the plaintiff as his legitimate son, but he held that in law, as the fact of no marriage was conclusively established, such acknowledgment would not confer the status of legitimacy. He therefore dismissed the suit. Appeal was taken by the plaintiff. In the appellate Court the Chief Justice agreed with Greaves J. that the marriage was in fact disproved. Differing from Greaves J., he held that there was no proper acknowledgment of legitimacy, but, upon the assumption that there was, he agreed with Greaves J. on the law that such an acknowledgment, in the face of the disproof of the marriage, was of no avail. Woodroffe J. thought that there was no acknowledgment of legitimacy and no affirmative proof of Law. Rep. 48 Ind. App. Woodroffe J. thought that there was no acknowledgment of legitimacy and no affirmative proof of Law. Rep. 48 Ind. App. 114 ( 1920- 1921) Habibur Rahman C howdhury V. Altaf Ali C howdhury 28 marriage, and therefore the plaintiff failed, but he did not go the length of holding that there had been disproof of marriage. Chitty J. held that the marriage was disproved. That being so, he did not feel called upon to decide with certainty as to whether there was a good acknowledgment of legitimacy or not, though he indicated that the bias of opinion was that there was not. The plaintiff is thus faced by two adverse concurrent findings of fact to the effect that the existence of a marriage is disproved. As, however, the junior counsel for the plaintiff urged that this was not so, it is well to make it clear as to what constitute concurrent findings. The first issue as settled by the trial judge was, " Was Mozelle Cohen married to Sobhan" (the Nawab) ? His finding as to this was " I hold that upon the evidence the long connection of Sobhan and Mozelle was inconsistent with the relation of husband and wife, and that Mozelle is, upon the evidence, proved to be merely his concubine, and that Mozelle Cohen was not married to the deceased Nawab." The Chief Justice said "I think the learned judge was right in holding that Mozelle was never married to the late Nawab Sobhan ; to put it in other words, in my judgment it has been proved that Mozelle was never married to the late Nawab" ; and Chitty J. said " I do not believe that any marriage between Abdus Sobhan and Mozelle Cohen ever took place; in other words, I find the marriage disproved." These two learned judges form a majority of the appellate Court. That makes a concurrent finding, and it is not vitiated as such because, as here, the other judge in the appellate Court does not come to the same conclusion in fact though coming to the same result in law arising from another fact. Of course, to be concurrent findings binding on this Board, the fact or facts found must be such as are necessary for the foundation of the proposition in law to be subsequently applied to them. Of course, to be concurrent findings binding on this Board, the fact or facts found must be such as are necessary for the foundation of the proposition in law to be subsequently applied to them. The senior counsel for the appellants was unable to deny that there were concurrent findings as to the non-existence of the marriage. His argument was directed to this, that, assuming he could show a good acknowledgment of legitimacy, that conferred the status of legitimacy and made it irrelevant to enter into any inquiry as to the fact of marriage. The case might be disposed of by holding, as the majority of the learned judges of the appellate Court did, that there was no proper acknowledgment of legitimacy. There is not, however, as to this a " concurrent finding," for the learned trial judge thought otherwise, and it would be necessary to examine the evidence before coming to the above conclusion. Their Lordships do not think it necessary to embark on this inquiry. They will, without deciding, assume that there was a proper acknowledgment, for, as is to be presently explained, they are of opinion that such acknowledgment, in face of the fact that there was no marriage, is of no avail. Their Lordships consider that this result is reached on principle, and is concluded by authority. 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 Mohammedan 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 subsequence matrimonium. By the Mohammedan 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. Law. Rep. 48 Ind. App. 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. Law. Rep. 48 Ind. App. 114 ( 1920- 1921) Habibur Rahman C howdhury V. Altaf Ali C howdhury 29 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 it 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. A large number of cases were cited to their Lordships which they think it unnecessary to discuss in detail. 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. A large number of cases were cited to their Lordships which they think it unnecessary to discuss in detail. It is quite true that in the earlier of the series not only is stress laid on the fact that an acknowledgment of legitimacy has more than a mere evidential value, but also there are expressions used such as that by a proper acknowledgment the status of legitimacy is " acquired." Fastening on such expressions, the learned counsel for the appellants argued that to enter into an inquiry into the fact of marriage when a good acknowledgment had been made out was not only bad law but a sin against the rules of logic. The simple answer to this is that the phraseology of such expressions as cited above must not be pressed to disturb what is the ruling principle, and that principle is that in Mohammedan law such an acknowledgment is a declaration of legitimacy and not a legitimation. A declaration, though it cannot be withdrawn, may be contradicted, for it is only a statement legitimation is an act, which being done cannot be undone. So the rules of logic remain untouched. The whole question was thoroughly examined in a very learned judgment by Mahmood J in the case of Muhammad Allahdad Khan v. Muhammad Ismail Khan (I L. R. 10 A. 289.); and finally, in the case of Sadik Husain Khan v. Hashim Ali Khan and 1 Others (L. R. 43 I. A. 212, 234.), Lord Atkinson, delivering the judgment of the Board, said as follows " If this be so, the rule of the Mohammedan law applicable to the case is well established. No statement made by one man that another (proved to be illegitimate) is his son can make that other legitimate, but where no proof of that kind has been given such a statement or acknowledgment is substantive evidence that the person so acknowledged is the legitimate son of the person who makes the statement provided his legitimacy be possible." That statement is, in their Lordships view, clear and conclusive, and what they have said above is no more than an elaboration of what was there said. Their Lordships will therefore humbly advise His Majesty to dismiss the appeal with costs.