Macnaghten, J.
1. Hadji Husain, who was a member of a Mahomedan family belonging to the Shia sect and settled in Calcutta, traded as a merchant in Rangoon, made a fortune, and died there, married but without issue, in February 1890. He left a will by which he purported to dispose of all his property. Hadji Husain had an only brother of the full blood, called Abdul Hadi, who died before him in March 1886. He too was engaged in Rangoon for many years, but his career was less prosperous and be returned to Calcutta a poor man some time before his death. The appellant claims to be the lawful son of Abdul Hadi by a Burmese woman, and as such to be the heir or one of the heirs of Hadji Husain and entitled therefore to a share, in so much of his estate as he could not dispose of by will according to Mahomedan law. For the purpose of the present case it is conceded that the appellant''s claim is well founded, provided he can make out that he either is or is entitled to be treated as the lawful son of Abdul Hadi. And the only questions on this appeal are these: (1) Has it been established that a valid marriage took place between Abdul Hadi and the appellant''s mother, Mah Thai, who was undoubtedly a Buddhist when she met her alleged husband? (2) If proof of legitimacy is wanting, is there sufficient evidence of the legitisation of the appellant by acknowledgment?
2. The learned Recorder found that there was no marriage, holding upon the evidence that Mah Thai was not a convert to Mahomedanism. It would, it seems to me, "he observed." be a more mockery of the Mahomedan religion to say that there was a conversion, when there was not even a semblance of discussion on the subject, when no priest intervened, and when the utmost the alleged convert can say is, that she repeated prayers in a language she did not understand." Taking this view ho thought it unnecessary to consider the evidence as to acknowledgment. No acknowledgment in his opinion could confer the status of legitimacy upon the offspring of a Mahomedan and an unconverted Buddhist.
3. The learned Counsel for the appellant took exception to the proposition upon which the Recorder''s ruling seems to be based. It was a mistake, they said, to talk of conversion. No Court can test or gauge the sincerity of religious belief. In all cases where, according to Mahomedan law, unbelief or difference of creed is a bar to marriage with a true believer, it is enough if the alien in religion embraces the Mahomedan faith. Profession with or without conversion is necessary and sufficient to remove the disability.
4. This criticism seems to be well founded. But the correction does not mend the appellants case. There is nothing in the evidence tending to show that Mah Thai made any profession of the Mahomedan faith before or at the time of the ceremony which is said to have constituted marriage. Mah Thai was a witness for the appellant. She said that she knew nothing about the Mahomedan religion; all her life she lived and worshipped as a Burmese. While cohabiting with Abdul Hadi she worshipped as he did; she repeated his prayers. But she added that she did not understand the meaning of a single word. In re-examination she said that she ceased to be a Buddhist during her cohabitation with Abdul Hadi from the time of her marriage.
5. The learned Counsel for the appellant then invited their Lordships to embark on a wider inquiry, They proposed to examine and discuss the tenets of Buddhism with the view of showing that Buddhists come under the same category as Jews and Christians, with whom undoubtedly Mahomedans may intermarry. But it was obviously impossible for their Lordships to entertain the question in the present case. In the Court below it was common ground that such a marriage would be invalid, and there was therefore no evidence before the Court directed to the point.
6. In the next place it was urged that every presumption ought to be made in favour of marriage when there had been a lengthened cohabitation, especially in a case where the alleged marriage took place so long ago that it must be difficult, if not impossible, to obtain a trustworthy account of what really occurred. There would be much force in this argument-indeed it would be almost irresistible-if the conduct of the parties were shown to be compatible with the existence of the relation of husband and wife. In cases like the present conduct is a very good test, and a safer guide perhaps than the recollection or imagination of interested or biased witnesses. Mah Thai''s own account of the way in which she was treated may be accepted as a fairly truthful story, considering her relationship to the claimant, and the fact that she is speaking of what occurred many years ago. The alleged marriage took place somewhere about the year 1854. If that date is correct the connection between her and her alleged husband ceased in 1856, though Abdul Hadi did not leave Rangoon for good until more than twenty years afterwards. The marriage was proposed to her she says, by a married sister of hers who was living in Rangoon, and who sent for her from her native village-a place called Mangi about half a day''s journey off. She had already been married once, but that marriage was dissolved by mutual consent. Abdul Hadi was brought for her to see. She asked him if ho would look after her and cohabit with her for along time and he said he would, He came four or five times before the marriage. He said he would invite his male relatives, but he was not going to invite his female relatives. At the marriage some money and a ring were put into her hands as dower; with that part of the ceremony she seems to have been careful to insist upon it; and her consent to the union appears to have been given in duo form. Then we have a picture of her married life. After the marriage she was not allowed to go out. She never saw any of her husband''s female relatives. She did not know why they did not come to see her. She was not allowed to go to the mosque. She knew that wives of Mahomedans go to the mosque. She did not go because Abdul Hadi would not allow her. None of the female members, of the Muhomedan. community visited her, nor did she visit them. She never saw Hadji Husain or any of Abdul Hadi''s male relatives. At the end of about a year and a half, when she was far gone in pregnancy, she went back to her mother''s home in Mangi. She was confined there of a boy, whom she identifies as to the present appellant. When the child was born she sent a message to Abdul Hadi to tell him of the birth. His answer was that he was busy and could not come. He sent however money for expenses, and he sent a message to her parents to look after her. On two occasions, afterwards, he went to Mangi to visit her, returning to Rangoon in the evening. The first visit was about six months, the second about twelve months after the birth of the child. On the first occasion Mah Thai says she saw Abdul Hadi alone, but nothing in particular was said. He wrote on a piece of paper a Mahometan name for the child. Afterwards for fear it would be lost it was copied on a palm leaf. The name was never used. The paper and the palm leaf have disappeared. But Mah Thai says the name was "Abdul Razak." and that name has been reproduced or adopted in connection with this claim. On the second occasion, according to Mah Thai''s statement, Abdul Hadi wanted to take the child to Rangoon, and wanted her to go with him. She said she was not well yet and that the child was not old enough. That was the last occasion on which Mah Thai saw Abdul Hadi. So far as appears she never even heard from him or of him afterwards. He was at that time apparently in prosperous circumstances, but he made no provision for her or for the child, and he left the child to be brought up as an unbeliever without so much as performing the primary rite of his religion. Mah Thai was very badly off, but she never applied to her alleged husband for assistance nor did she make any attempt to see him, though she knew where he lived, and he had, she said, been kind to her while they cohabited together, and she liked her life with him. At the-end of two years, or four years as she says in one place, she married a Bur-man by whom she had seven children. Then she was divorced and at the time'' of the trial she appeared as the wife or partner of a fourth consort.
7. Abdul Hadi continued to reside in Rangoon for a good many years, paying occasional visits to Calcutta. After a time he met with reverses and left Rangoon altogether. The last years of his life he spent at Calcutta, living as a pensioner on the bounty of his brother, Hadji Husain.
8. The child was brought up by Mah Thai''s parents who were in humble circumstances. As "Moving Hpay", which was the name they gave him, he lived till he was about thirty-five, with no higher aims or aspiration than those of an ordinary Burmese peasant, When the heirs of Hadji Husain were wanted, he was discovered in the jungle at Mangi by some enterprising gentlemen at Calcutta who took the matter up as a speculation. They put him forward as the missing heir, and "Moung Hpay" has become an alias for Abdul Razak." Their interest in the success of the claim is at least a guarantee that no stone has been left unturned to enable the case to be presented in as favourable an aspect as possible.
9. In the course of the argument Mr. Wheeler, the Judicial Clerk of the Privy Council, referred their Lordships to a case decided by the Special Court of British Burmah in 1875. It is to be found at page 75 of Mr. Christopher''s Collection of Circular Orders and Judgments, published under the authority of the Judicial Commissioner in 1881. The opinion delivered by the Court throws so much light on the practice relating to mixed marriages in Burmah, and the position held by the wife and children when there is a lawful marriage, that it will not be out of place to quote a passage from it. After stating as a matter apparently not open to controversy that in order to constitute a valid marriage between a Mussulman and a Burmese woman, the woman must first apostatise and embrace Islam, the judgment proceeds as follows:
In a country like this, whore a large number of Mahomedans from other countries have taken up their residence, and in very many cases their permanent abode, and when the natives have no race prejudices against alliances with foreigners, and whose religion offers no impediment to such, we find these mixed marriages everywhere existing among them, which have been duly celebrated according to Mahomedan rites; the wife having previously renounced her own religion and embraced that of her husband. Such an alliance is not regarded by either party as one of a temporary character, or in any way partaking of concubinage such as the liaisons which at one time prevailed here between Europeans and the women of the country, but as a formal and a binding marriage. It only requires a short experience of this country to know that these marriages are regarded amongst the Mahomedan community as being of as binding a character, and as conferring on the wife as honourable a position in the family as if she had been of Mahomedan descent, for she holds the same position as the husband''s other wife does, if he happens to have another. The offspring likewise of these marriages are brought up in the Mahomedan faith, and are acknowledged, by their father as his legitimate children, and at his death share his property as such. The Burmese wife also takes the wife''s share, if she is the only one, or divides it with the other or others as the case may be; and these rights, both as regards the children and the wife, are recognised by our Courts.
10. If this be a correct description of the position of a Burmese woman lawfully married to a Mahomedan settler in Rangoon, it certainly would require a very violent presumption in favour of marriage to enable the Court to hold that Mah Thai was lawfully wedded to Abdul Hadi. It is tolerably obvious that neither Abdul Hadi nor Mah Thai regarded the ceremony which preceded their cohabitation in the light of a lawful and binding marriage. On this point their Lordships are glad to find themselves entirely in accord with the Court below.
11. The only question remaining for consideration is the question of acknowledgment, with which the learned Recorder dealt in rather a summary way. The learned Counsel for the respondent did not deny that Abdul Hadi might have married Mah Thai, as no doubt he might have done if she had embraced Islam, nor did they contend that the intercourse between Abdul Hadi and Mah Thai was of such a character as to prevent the possible legitimation of the offspring. Their contention was that there was no acknowledgment in the legal and proper sense of the word, although there may have been an admission of paternity.
12. The learned Counsel for the appellant cited various texts, which, taken apart from the context, would seem to show that any admission of paternity, though made casually and not intended to have a serious effect, would be sufficient to confer the status of legitimacy. It is not in their Lordships'' opinion necessary to examine these ancient authorities, or to inquire how far they are applicable to a state of society very different from that which existed at the time when they were promulgated. Their Lordships are bound by the decision of this Board which is clear upon the point. The question arose in the case of Ashrnff-ood-dowla Ahmed Hossein v. Hyder Hossein Khan 11 Moo. I.A. 94. There it was contended that the claimant, who was defendant in the suit and respondent on the appeal, had been acknowledged by his putative father. The fact of acknowledgment was denied by the appellant, and a deed of repudiation was set up, in which the father expressly repudiated the claimant as his son. An issue was framed in these terms : Has the deed of repudiation the effect of cancelling previous acknowledgment of defendant''s legitimacy, if such were made?" In the course of their judgment (p. 104 of the report) their Lordships comment upon that issue. It was, they said, ''very correctly framed. It substitutes, for the ambiguous word'' sonship which might include an illegitimate son, the word ''legitimacy,'' and uses the word ''acknowledgment'' in its legal sense, under the Mahomedan law, of acknowledgment of antecedent right established by the acknowledgment on the acknowledger, that is, in the sense of a recognition, not simply of sonship, hut of legitimacy as a son.'' It is clear that it is in that sense that the term ''acknowledgment'' is used in a later passage of the judgment which has often been cited, where their Lordships say ''a child born out of wedlock is illegitimate; if acknowledged, he acquires the status of legitimacy. When, therefore, a child really illegitimate by birth, becomes legitimated, it is by force of an acknowledgment, expressed or implied, directly proved or presumed."
13. It cannot be contended that there was any acknowledgment of legitimacy in the present case. The so-called acknowledgment, even if the evidence on the part of the appellant is accepted as true in every particular, comes to nothing more than an admission of paternity which was not intended to have the serious effect of conferring the status of legitimacy. A witness is produced who says he accompanied Abdul Hadi on his second visit to Mangi, and that Abdul Hadi told him that he was going to see his son. And there is some other evidence to the like effect. Then there is some evidence that Abdul Hadi though he had no property, left a will, bequeathing everything to his brother Hadji Husain, in which he mentioned that he had offspring in Burmah. According to one witness he named the offspring as "Abdul Razak," and expressed" a wish that his brother should give him "something." The will it seems was sent to Hadji Husain, but it is not forthcoming, nor was it acted upon. Assuming however every word that is said about it to be perfectly true, the evidence falls very far short of such an acknowledgment as would confer the status of legitimacy upon an illegitimate child.
14. Their Lordships, therefore, in the result agree with the learned Recorder in thinking that the appellant s claim fails, and they will humbly advise Her Majesty that the appeal must be dismissed with costs.
