Mohammedans of the North-West Frontier Province.
Among Mohammedans of the North-West Frontier Province, following agricultural custom, there is generally a custom whereby a widow who remarries without consent of her deceased husband’s collaterals, forfeits her share in the estate left by her first husband (3).
34. Illegitimate children
Illegitimate children are not entitled to any share in their putative father's estate, but they children can calm maintenance until they are able to earn their own living, subject to good behavior. Their descendants, however, can assert no such claim as of right.
The claim of an illegitimate son to succeed his putative father was disallowed in-
36 P. R. l881- Bishnoi J ats of Sirsa,
116 P. R. l889- Mirda Alians of Gujrat.
87 P. R. l898- Varaich Jats of Gujranwala.
52 P. P. 1899- Khatris of Majitha, Amritsar District.
22 P. R. 1909- Sidhu Jats of Nakodar Tahsil, Jullundur Distric
15 P. R. 1914- An illegitimate son of Chambar Rajputs of Hoshiarpur District is not entitled to succeed to his father's occupancy rights under S. S9, Punjab Tenancy Act.
It was observed in Hakim v. Jagat Singh (4)-"It is, however, a great step further to hold that a connection by co-habitation between a man and a woman, between whom marriage is to their knowledge through about distinctly unlawful, is to give a full right of succession t illegitimate children. We are to refuse to accept, as proved, any custom which is obviously and clearly immoral, and, when it is sought to prove the existence of a custom regarding inheritance which is at last of very doubtful morality, it is necessary to scrutinize the proof of -its existence very carefully, and it must not be found to be binding if contrary to justice equity and good conscience.
An illegitimate son may, however, prove that by custom he is entitled to succeed to his putative father. But it is doubtful if such custom will be held moral even if proved. In 9 P. R. 1880, there is one instance of an illegitimate son succeeding to his putative father, amongst the Bhutar Jats or Lahore District.
Right of illegitimate children according to Hindu Law.
According to Hindu Law an illegitimate son or a Sudan is entitled to Right of illegitimate children Inherit the property of his putative father pro-according to Hindu Law. vided that his mother was in the continuous and exclusive keeping of his father, and he was not the fruit of an adulterous or an incestuous intercourse (I). But among the three’ twice-born classes an illegitimate son is not an heir of his father either under Hindu Law or under the Customary Law (2). In 1921, 2 Lah. 243, the parties belonged to the family of the present Maharaja of Kapurthala. Kunwar Suchot Singh of that family had two Mohammedan concubines and two illegitimate Sons had been born to him, one each from these two women. The two illegitimate sons and their mothers brought a suit claiming maintenance from the legitimate son of Kunwar Suchet Singh. Claim of the illegitimate children was disallowed, in the absence of proof of a family custom.
Where the parties were governed by the Hindu Law, it was held that though the husband is, under the personal law, bound to maintain his wife and infant son, that obligation is a persona] obligation; and the payment of debts takes precedence over a right of maintenance (3).
Under S. 488 of the Criminal Procedure Code, a father is liable for the maintenance of his legitimate or illegitimate child unable to maintain itself, but not for the child of his wife by a former husband (4). ,
Acknowledgement of paternity under Mohammedan Law
According to the Mohammedan Law, if a man has acknowledged another as his legitimate child, the presumption of under paternity arising there from can only be rebutted by proof that the mother of the acknowledged could not possibly have been the lawful wife of the acknowledger at any time when the acknowledged could have been begotten (5). In Feroz Din and others Nawab Khan (6) in which the parties were Mohammedan Rajputs of Garhshankar Tehsil, it has been held that acknowledgment raises a presumption of marriage, but the presumption is capable of being set aside by contrary proof. Marriage will be held proved and legitimacy established, unless the marriage is disproved. Where the mother of the children was ordinarily an ordinary prostitute, two sons were admittedly illegitimate, and the other three were born before she came to live with the father, the initial presumption would be that the illicit connection continued.
Where the parties are actually governed by the Customary Law of the Punjab. the question of acknowledgment under the Mohammedan Law does not arise. "The Customary Law does not as a rule recognize the principle of acknowledgment" (6).
According to Mohammedan Law a son born out of wedlock becomes legitimate and entitled to all the rights of a son born of a lawful marriage by subsequent acknowledgment provided his parentage. is not .otherwise established, there was no legal impediment to the marriage of his parents and it is not obvious that there was no marriage between his parents (1). See Lalli Begam v. Azmat Ali=I3 P. R. 1875 and 17 P. R. 1882 as to the application of this principle to one of the MandaI families in the Kamal District.
Acknowledgment of paternity under the Mohammedan Law is a recognition, not simply of sonship, but of legitimacy as a son. It is quite. different from adoption (2). Under Customary Law, however, it is doubtful if a similar effect will be given to an acknowledgment. It is a different thing if a father alienates his property in favour of his illegitimate son, if permitted to do so by custom (3).
Right of maintenance.
Illegitimate children are generally entitled to maintenance during their minority and daughters to be married, though in certain tribes even this much is denied as a matter of right.
Illegitimate children are entitled to maintenance during minority" (4).
Dera Ghazi Khan District.
"Hindus and Mohammedans in the district ate unanimous that illegitimate children are not entitled to maintenance. In Sanghar, however, it is added that if a father gives a written agreement, the children can claim maintenance during their minority "(5).
Dera Ismail Khan District.
No instance is known. If the father were known he is bound to maintain such children till they are old enough to support themselves. They have no claim against the father's heirs "(6).
"Illegitimate children have no right whatever to inherit, but they have a right to maintenance so long as they are minors" (7).
"It is generally admitted that illegitimate children are entitled to
maintenance until they grow up" (8).
"Among all tribes (Tehsil Gujranwala) and Wiraks and Rajputs (Tahsil Sharakpur)
(1) Son of a (goli) maid-servant takes equal share along with the
(2) Sons of a goli or illegitimate offspring take equal shares; and
(3) No distinction of inheritance is made among such offspring.
A father can make his illegitimate son, by his admission, legitimate whereupon he takes equal share along with legitimate sons. But among Wiraks and Rajputs (Tehsil Sharakpur) father has no such power, nor can such sons inherit.
Among all tribes (Tahsils Wazirabad and Sharakpur), save Rajputs and Wiraks, illegitimate children have in no case any right to inherit the property of their natural father. Answer to whole question is in negative.
Among Tahsils Hafizabad and Khangah Dogran tribes the issue of unmarried women is illegitimate. Though they cannot inherit the property of their natural father, yet they are entitled to be maintained till of age. They are also entitled to retain possession of property made over to them in the life-time of their natural father.
Among Tarar, Kokara and Sayad tribes, no immoveable property is ever made over to such offspring" (1).
“Illegitimate offspring as well as their issue are not entitled to maintenance as against the heirs of their deceased father" (2).
"Illegitimate children are entitled to maintenance until they are of age" (3).
"Illegitimate children by a recognized concubine (suraitwa/) are entitled to maintenance as against the heirs of their deceased father (Rajputs, Ahirs).
Other illegitimate children are not entitled to maintenance as against the heirs of their deceased father. (All tribes having any custom).
Note. -Among Rajputs sometimes a Suraitwal is given enough land to live by. But he cannot alienate it. His right is milkiyat mahduda strictly limited. The usual answer to this question is kamao khao, i.e., if the illegitimate son works for his living, he gets it; otherwise he is turned out" (4).
"Illegitimate offsprings are not entitled to maintenance as against the heirs of their deceased father. Among Dogars and Jat Sikhs such children are entitled to maintenance from the estate of their deceased father till they reach the age of puberty" (I).
"Illegitimate children are entitled to maintenance during their minority and daughters to be married" (2).
"Illegitimate children are entitled to maintenance as against the heirs of their deceased father during their minority, but among Sayyads, PathaDs and Sheikhs of the Jullundur Tahsil, they are not entitled to any maintenance" (3).
Note. - The son of a slave girl (kanizak) is entitled to maintenance during minority among all the tribes (4).
"Illegitimate children are entitled to maintenance among Rajputs. The Brahmans and others of Dehra and Hamirpur Tahsils say they can get maintenance only till they are of aie. The remaining tribes of Kangra, Palampur and Nurpur say they are not entitled to maintenance though it is often allowed" (5).
"Illegitimate children are usually entitled to maintenance during minority" (6).
" All tribes-
"Illegitimate sons are not entitled even to maintenance.
Note. - The truth is that illegitimate sons are entitled to maintenance during minority" (7).
"Except the children of concubines (if these be considered illegitimate) to the extent indicated in the preceding paragraphs illegitimate children who do not inherit are not entitled to maintenance" (8).
"Brahmans throughout and Hindu Rajputs of Jhajjar say the child is not entitled to maintenance. Other tribes say it is so entitled until majority, i. e., until it can support itself" (9).
40 P. R. l880- Amongst Rathor Rajputs of Jhazgarb. Rohtak District, an illegitimate son by a concubine is entitled for life to maintenance from the paternal estate, provided he does nothing seriously detrimental to the interests of the head of the house but on his death his children are not entitled to maintenance from the legitimate sons except by their pleasure and consent.
87 P. R. 1 898- Varaich Hindu Jats of Gujranwala District.
111 P.L.R. 1900;
1921, 3 Lah. L.J. 317 at p. 334 In Kangra District a Sartora illegitimate son gets maintenance.
I.L. R. 2 Lah. 243- The claim of an illegitimate child of a deceased Hindu by a Muhammadan concubine for maintenance from the legitimate son of the deceased, was not allowed.
Under Customary Law it is open to a widow. who is entitled to a life-interest in her husband's property for her maintenance, to elect not to take possession but to take maintenance from her husband's male heir, and in such event the latter becomes invested with the right of ownership over such property (1). A widow is competent to relinquish her life-estate, and thereby accelerate the succession of the reversioners to the property of her deceased husband. but "it is essential that she should give up her whole estate, and not merely a portion of it "(2).
Where a dispute arises between a widow or other limited heir and the next reversioner as to the right of inheritance to a male, and a compromise is entered into whereby the widow or other limited heir relinquishes her right of succession to the property in consideration of a provision for her maintenance for her life, the compromise amounts to a bona fide surrender of the whole estate (3).
Where it was contended that the succession did not open to the reversioners because of the intervention of K, who held widow's estate and where the trial Judge found as a fact that if K had any interest in the estate. she surrendered it in favour of the reversioners in lieu of Rs. 2 p.m. which completely effaced her, held, that K's existence did not prevent the reversioners from inheriting the estate and that the rule of law prescribed by the Punjab Limitation Act governed the suit and the claim was barred by time (4).
See also further notes under Chapter on "Alienation".
Under the Customary Law prevailing in the Punjab, the estate of the widow being strictly limited for her life only, adverse possession during the life-time of the female cannot bar the reversionary heirs, and limitation rung against the reversionary heirs only from the death of the widow, no matter what the circumstances may be under which the adverse possession Was gained and continued (I).
Where adverse possession had commenced against a certain widow in 1882, who died in 1883t the reversionerts suit for possession in 1895, being instituted within 12 years of her death when the cause of action accrued was within time (2).
B, a widow in possession of her husband's land, left the village for her parents' houset being unable to pay the Government demand for arrears of land revenue. A, a distant relative, as lambardar, paid the said arrears and the reversioners of B 'declined to take up tht' land, and to pay the revenue due, saying that they would take steps to assert their rights when the widow died. A then obtained possession of the land, agreeing to give it up after cutting the standing crops whenever the widow paid the amount. Shortly after, B died without making any effort to regain her land, and it was mutated in her mother-in-law’s name, also an absentee, A being recorded in possession as before. Ten years after the mother-in-law's death, the plaintiffs reversioners claimed possession from heirs of A on payment of that sum and the defendants pleaded abandonment of their rights by plaintiffs also bar by limitation. Held, that the reversioners' suit for possession, applying Art. 141 was within time counting it from the death of the second female entitled to the land; plaintiff's right accruing only after her death, it was immaterial she herself never had possession and the land had passed into A's possession during B's life-time (3).
In a suit against the tenants at will of a widow after her death, by her reversioners, time begins to run against the reversioners from the date on which their right to physical possession accrues or adverse title being set up by the tenants (4).
A widow through her unchastity forfeited, under local custom, her widow's estate but remained in possession of the estate for a period extending over more than twelve years. There was no evidence upon the record that she ever claimed the property as an absolute owner or that there was any change in the character or her possession after her. Becoming unchaste. 011 her gifting away the Immoveable property to her illegitimate son, the reversionary of her husband brought a suit for declaration. Held, that the widow's possession for more than twelve years after her unchastely completed her title to the widow's estate and that her husband's reversioner was entitled to succeed to it on her death (5).
A widow after her remarriage forfeited under custom her widow's estate but continued to be recorded as in possession of it as her first husband's widow for more than 12 years without objection by the reversionary. Held, that her possession after her remarriage was only. In respect of her widow's estate and what she acquired by adverse possession was complete title to such limited estate only, and the reversionary right to succeed on her death could not be defeated (6).
Where a person dies leaving two widows and one of them remarries the whole estate of the deceased passes to the other widow and the mere retention of the remarried widow's name in the revenue records would not place her in adverse possession of her share qua the co-widow and owing to her intervening between the estate and the reversioner the latter's rights
would not be affected (1).
A widow, whose ownership is limited to a life-tenure, can alienate only for necessity, but when a mortgagor or puisne mortgaee claims to redeem land held by the widow as mortgagee, she is unable to resist the claim, and a redemption allowed by her cannot be regarded as a voluntary alienation. The mortgagor is not bound to see that the money paid to redeem the land is secured for the benefit of the estate, nor is it his duty to associate the reversioners ill the transaction (2).
See also notes under chapter on "Alienation".
A. I. R. 1936 Lah. 21- Amongst Tiwanas of Shahpur District who do not follow Mohammedan Law but custom, widows only succeed for their lives and other females take under special conditions. They do not take an absolute interest but they defer the enjoyment of the estate by a reversioner.
A. I. R. 1935 Lah. 294- Sasral Rajputs of Rawalpindi Tahsil. No custom proved by which a widow is entitled to inherit the property of the deceased along with her sons
A. I. R. 1934 Lah. 205- Jats of village Barianwala, Tahsil Nankana Sahib, District Sheikhupura. On death or son without issue widow of father comes in.
75 P. R. l868- Under Shia Law the husband succeeds to half of his wife's estate, even where he has been separated from her for years.
31 P. R. 1889- Sials of MauzaMian Daraz, Jhang. Where a woman has succeeded her father, her husband is excluded on her death by her father's collaterals.
16 P. R. 1903- Held, that among Hindu Jatsof the Moga Tahsil, Ferozepur District, a husband was not entitled to possession of land which was ancestral in the hands of his wife's father, and on the death of the father was in the possession of the wife's mother, and on her death was in the possession of the wife. That. the possession of the wife was permissive, and she did not acquire, by advise possession, an estate inherited by her husband.
135 P. L. R.1910- Sayyads of Mauza Saranga, Amba!a District. The husband was excluded by the son of the deceased's father's sister, where the estate came from the father.
4 P.R. 1912- Where on the death of their father, one of the daughters, B, took possession of the whole of his property, and the other daughter R brought a suit and secured half, and on B's death, R sued for possession of B's estate and the claim was resisted by B's husband, held, that the entry in the Riwaj-i-am of the Jullundur District to the effect that a husband succeeds to his wife's property applies only to her stridhan, and not to land inherited by her under Customary Law from a father, and such land, in default of male descendants. reverts to the father's line, in this case to deceased's sister.
A. I. R. 1938 Lah. 584- Where a property is the self-acquired property of a female, in the absence of her issues or other near relations of her own, her husband's heirs cannot be said to be mere trespassers.
A. I. R. 1949 East- Stridhan-Hindu Rajputs of Hoshiarpur District.
Punjab 35 = Even in case of a party who is admittedly
50 P. L. R. 151 governed by Customary Law, if no well-recognized rule of that law can be determined in respect of a particular question the court must fall back upon the party's personal law.
In the case of a woman, amongst the Hindu Rajputs of the Hoshiarpur " District, which is a statutory agricultural tribe, dying leaving immovable property given to her by a stranger, the local custom and the general custom are silent regarding the rule of succession to be followed in respect of that kind of property. The succession in respect of such property, therefore, must be governed by the Hindu Law, which is the personal law of the party. According to the Hindu law, the property in question would be described as the strid and according to the rule of succession governing the stridhall other than the sulka. the right of the daughter is superior to that of the husband.
C. A. 1411 of 1875- A nauchi succeeds to the estate of a brother keeper.
89 P. R. 1884- A brothel-keeper is not entitled to succeed to her nauchi, such being opposed to public policy, Rawalpindi.
95 P. R. 1884- Kanchanis of Delhi. An adopted female gets no right of succession.
95 P. R. 1885- Kanchanis of Ambala; women absolute estate.
166 P. R. 1888 Kanchanis of Delhi follow Mohammedan Law.
52 P. R. 1893 Consequently brothers and sisters succeed to a share according to Mohammedan Law.
148 P. R. 1889- Kanjars of Lahore. Married and unmarried daughters succeed equally.
62 P. R. 1892- Prostitutes in Lahore are governed by Muhammadan Law.
196 P. L. R. 1912- Kanjars of Jagadhri. Own custom followed. Sons and daughters succeed equally and right of representation exists.
75 P. R. 1918- Prostitutes of Lahore. A custom by which a brother-keeper succeeds to the property of a nauchi is immoral and has no force.
Cf. 1 Mad. 168; 1 Mad. 356; 2 Mad. H. C. R. 56; 5 Mad. H. C. R. 61 ; 4 Bom. 545 ; 4 Born. 573 ; XXI Cal. 149