J.W. Colvile, J.

1. The case came on appeal before the High Court, who gave a very elaborate judgment in January 1860. The High Court agree with the learned Judge of the Zillah Court in his finding on all the ten issues relating to the compromise, and there being two concurrent findings upon these issues, which are questions of fact, their Lordships are by no moans disposed to disturb them. Indeed, it has scarcely been argued that, giving effect to the rule on this subject, they should be disturbed.

2. The High Court next came to the conclusion that the compromise being set aside, owing to fraud and collusion on the part of Enayut Hossein, Enayut Hosseins right of appeal against Mr. LochS judgment was not revived, whereas the right of appeal on the part of the plaintiff Rowshan Jehan was revived. From that finding their Lordships differ. It appears to them that the effect of setting aside the compromise was to remit both parties to their original rights, and that if the plaintiff is to be allowed to be heard to appeal against so much of the decision of Mr. Loch as is against her, Enayut Hossein ought to be heard to appeal against so much of the decision as is against him.

3. The High Court further affirm the decision of Mr. Loch on the subject of the will, which was in favour of the plaintiff, but they reverse his decision so far as it concerns the deed, which was against her. Further, they reverse the decision of Mr. Muspratt upon the two questions of the right of the plaintiff to succeed to Edoo Hossein, and of her right to succeed to her grand-mother. The case, therefore, reduces itself to four questions,--first, the validity of the deed; secondly, the validity of the will; thirdly, the survivorship between Edoo and Nuzeeroodeen, and fourthly, the plaintiffs right to succeed to her grandmother.

4. The policy of thf Mahomedan law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs, although he may give a specified portion, as much as a third, to a stranger. But it also appears that a holder of property may, to a certain extant, defeat the policy of the law by giving in his lifetime the whole or any part of his property to one of his sons, provided he complies with certain forms. It is incumbent, however, upon those who seek to set up a proceeding of this sort, to show very clearly that the forms of the Mahomedan law, whereby its policy is defeated, have been complied with. There is no question of the execution by Rajah Deedar Hossein of this deed giving one-third to his son Enayut on the 10th November 1839. The deed was either--to use English expressions--a deed of gift simply, or a deed of gift for a consideration. If it was simply a deed of gift without consideration, it was invalid unless accompained by a delivery of the thing given, as far as that thing is capable of delivery, or, in other words, by what is formed in the books a seizin on the part of the donee. In their Lordships judgment there was no delivery of this kind. Even assuming that although the estate was under attachment, a sufficient seizin in it remained to the donor which he could impart to the donee; still it appears by the evidence of Mr. Perry, which is treated as trustworthy on both sides, that in point of fact Rajah Deodar Hossein remained in receipt of the rents and profits of the property until his death. Therefore, if the deed were a mere deed of gift, there was not that delivery of possession which was necessary to give it effect by Mahomedan law. A question which was touched upon, though not much argued, viz., whether the doctrine of Mahomedan law relating to "confusion of gifts" applied, appears not to arise, as there was no delivery of possession.

5. But it was contended that this was a deed of gift for a consideration, and therefore that the delivery of possession was unnecessary. But it was conceded that in order to make the deed valid in this view of the case, two conditions at all events must concur, viz., an actual payment of the consideration on the part of the donee, and a bond fide intention on the part of the doner to divest himself in prasenti of the property, and to confer it upon the doneo. Undoubtedly, the adequacy of the consideration is not the question. A consideration may be perfectly valid which is wholly inadequate in amount when compared with the thing given. Some of the cases have gone so far as to say that even a gift of a ring may be a sufficient consideration; but whatever its amount it must be actually and bond fide paid.

6. His Lordship then considered the evidence bearing on the payment of the consideration, and continued: Taking into consideration all these circumstances, their Lordships have come to the conclusion, that the transaction sot up on behalf of the defendants was not a real one, that no real consideration passed, that there was no intention on the part of the Rajah to part with the property at once to his son, but that both father and son wore endoavouring to evade the Mahomedan law, by representing that to be a present transfer of property which was intended only to operate after the fathers death. Their Lordships, therefore, agree with the High Court in their view of the effect of the deed.

7. The next question arises as to the will. It was found as a fact by Mr. Loch that the heirs had not consented to this will; and with that finding their Lordships are satisfied. But it was argued by Mr. Cowie, first, that the will did not require confirmation; secondly, that at all events so much of it as gave one-third to Enayut Hossein for pious uses was not in contravention of Mahomedan law, and was therefore valid without confirmation. The effect of the will is, in the first place, to declare Enayut Hossein the executor and representative of Deedar, and to direct him to look after the zamindari, and so forth. Then follows this passage: (His Lordship road the portion sot out {Ante, p. 196), and proceeded): This will, in its general scope, appears to their Lordships to be in contravention of Mahomedan law. "With respect to the limited contention, that it may be supported with respect to the devise of the one-third share, it appears further to their Lordships that that devise, considering the vague character of it, and that the beneficial interest is left to Enayut Hossein after he has devoted what he may doom sufficient to certain indefinite pious uses, is in reality an attempt to give, under colour of a religious bequest, an interest in one-third to Enayut Hossein, in contravention of Mahomedan law.

8. After finding that there was no ground for reversing the decision of the High Court on the question of the survivorship between Edoo Hossein and Nuzeeroodeen, His Lordship continued: There remains the question of the right of the plaintiff to succeed to Beebee Loodhun, and that depends upon whether Beebee Loodhun was merely a concubine or a wife. It is an undisputed fact that Nuzeeroodeen, the son of Beebee Loodhun, was treated by his father and by all the members of the family as a legitimate son. It is not that he was on any particular occasions recognized by his father, but that he always appears to have been treated on the same footing as the other legitimate sons. This of itself appears to their Lordships to raise some presumption that his mother was his fathers wife. That such a presumption arises under such circumstances appears to have been laid down in a case which has been referred to, Khajah Hidayut Oollah v. Rai Jan Khanum 3 Moores I.A. 295 at p. 318 in which Dr. Lushington, who delivered the judgment of this Board, makes this observation: "The effect of that appears to be, that where a child has been born to a father, of a mother where there has been not a mere casual concubinage, but a more permanent connection, and where there is no insurmountable obstacle to such a marriage, then, according to the Mahomedan law, the presumption is in favour of such marriage having taken place." In this case there is no evidence that Beebee Loodhun was a woman of bad character, or that her connection was merely casual. She appears to have lived in the house at all events up to the death of the Rajah.

9. The same doctrine was laid down rather more strongly in a recent case, which came before this Board on the 20th March 1873. In the case of Newab Mulka Jehan Saheba v. Mahomed Ushkurree Khan 8 Mad. Jur. 306 a case from Oudh, and a Sheea case, their Lordships say: "This treatment of the daughter by the appellants "that is to say, the treatment of the daughter as a member of the family, "affords a strong presumption in favour of the right of her mother to inherit from her." The question there was whether the mother, who was said to be a slave girl, inherited from her daughter, whom she survived, the same question which would have arisen in this case if Beebee Loodhun had survived her son Nuzeeroodeen. Their Lordships go on to say, after noticing various acts of acknowledgment of the legitimacy of the child: "After these acknowledgments, Mulka Jehan and the appellants who act with her ought in their Lordships view to have been prepared with strong and conclusive evidence to rebut the presumption raised by their own acts and conduct; and in the absence of such evidence, they think the presumption must prevail."

10. It appears to their Lordships, therefore, that the undoubted acknowledgment by the father and by the whole family of the legitimacy of Nuzeeroodeen raises some presumption of the marriage of his mother. But it is said that that presumption is rebutted. The evidence chiefly relied upon for that purpose is the will of the Rajah, in which undoubtedly there is this expression: For the maintenance of four female servants monthly, 75; annually 900," and Beebee Looduan does appear to have been one of those female servants there mentioned. At the same time, it is to be observed, this expression occurs only in the scheduled; whereas in a part of the will preceding that schedule there is this expression: "The shares of the executor and of the sons, daughters, and wives of the testator and other claimants from the estate fixed annually at " so and so; and the subsequent provision for the maintenance of every female servant appears to be an expansion of that paragraph in which they are spoken of as wives.

11. But further, there is the undoubted acknowledgment by Enayut Hossein himself of Beebeo Loodhun being a wife, inasmuch as when Khyroonnissa, the principal wife, brings a suit against him, Enayut Hossein objects on the ground that Beebeo Loodhmn one of the other wives, is not joined.

12. Under these circumstances it appears to their Lordships that there is evidence, not only from the acknowledgment of Nuzeeroodeens legitimacy by the family, but from the admission of Enayut Hossein, that Beebee Loodhun was a wife, and not merely a servant. It is indeed alleged that she was what is called a temporary wife, and among the Sheea sect there appears to be a power of taking a mere temporary wife. But it is to be observed that there is no evidence of hers being what is called a temporary marriage, and indeed the witnesses who seek to impugn the marriage on the part of the defendant speak of Beebee Loodhun not as a temporary wife but as a mere servant. The question, therefore, seems to be not whether she was a temporary wife in the sense attached to that term in Mahomedan treatises, but whether she was a wife or whether she was a mere servant. On the whole their Lordships concur with the finding of the High Court. The evidence preponderates that she was a wife and not as a mere servant, though no doubt a wife of an inferior order.

13. A question further arose as to the amount of the share which the plain till would be entitled to, assuming that Beebee Loodhun was a wife, and it would certainly seem that her share would only be a fifth of an eighth, that is a fortieth share; whereas she appears to have received something more by the decree of the Court. But it is to be observed that this in a great measure is a matter of detail and possibly a clerical error or miscalculation, which might have boon sot right on an application to the High Court, and that in fact the High Court did invite applications for the purpose of remedying errors of this kind.

14. The result is, that with the exception of the slight variation of amount in the case of the claim of Mussamut Beebee Loodhun, their Lordships will humbly advise Her Majesty to affirm the decree of the High Court and to dismiss this appeal with costs.