Acknowledgment of a son by the father, coupled with conduct of the parties and other facts and circumstances, raises a presumption of marriage between the parents and legitimacy of the son. The burden of proof lies on the person challenging the legitimacy to disprove the marriage.

( 1 ) THIS appeal is by the plaintiffs who were successful in the trial court but the decree they obtained was set aside in the appeal taken by the contesting defendants in the lower court.

( 2 ) IN this second appeal the main question which arises for determination is whether Lalit, one of the defendants, is the legitimate son born of the wedlock between Dhirmohan, the father of the plaintiffs and Parulbala, the mother of Lalit who is also the defendant in this case.

( 3 ) THE suit was filed by the plaintiffs on certain allegations. It is stated that the plaintiffs' father Dhirmohan Das Bhowmick was a man having considerable properties. One Rohini Kanta Das, the husband of the defendant No. 3 Parulbala Dasi, was a Kabiraj and he used to come from East Pakistan and stay occasionally at the house of the plaintiffs' father before the partition of India. After the partition, Rohini Kanta finally migrated with his family and took shelter in the outer house of the plaintiffs' father in 1356 B. S. Thereafter in 1359 B. S. Parulbala drove out Rohini Kanta. Rohini Kanta left the place and never came back. Parulbala was a woman of loose morals and the plaintiffs' father drove her out and she took shelter in the Akhara of some Bairagis where she gave birth to an illegitimate child who is the defendant No. 2 Lalit. According to the allegations of the plaintiffs, Parulbala used to mix with persons of bad character and as a result of that association Lalit was born. It has been further alleged that Parulbala after the death of the plaintiffs' father, without the knowledge of the plaintiffs, got mutations in the department of the Revenue Officer in favour of herself and the defendant No. 2, her son, alleging that she was the lawful widow of Dhirmohan and that Lalit was his son. According to the plaintiffs, Dhirmohan had no connection with Parulbala and Lalit was not his son. On these main allegations the plaintiffs wanted to have a declaration of their title to some of the properties which have been recorded in the name of Parulbala and Lalit,

( 4 ) A joint written statement was filed by Parulbala on behalf of herself and her son Lalit, the defendant No. 2. In substance their defence is that after the death of Rohini Kanta Dhirmohan married Parulbala in the year 1359 B. S. and she lived with Dhirmohan as husband and wife since then. Lalit, the defendant No. 2, was the legitimate son born of the wedlock. She claimed to be the heir of Dhirmohan along with her son Lalit by Dhirmohan. Several issues were framed and the most important issue was whether the defendant No. 3 Parulbala was lawfully married with Dhirmohan and whether the defendant No. 2 Lalit was the legitimate son of Dhirmohan as alleged by Parul. The trial court, on consideration of the evidence on record, held that there was no sufficient evidence to prove the marriage between Dhirmohan and Parulbala and according to it defendant No. 2 was not the legitimate son of Dhirmohan. In the appeal taken by the defendants Nos. 2 and 3 before the lower appellate court it was held, after additional evidence had been taken on the prayer of the appellants, that Lalit was the legitimate son of Dhirmohan as evidenced by acknowledgement by Dhirmohan. Before the lower appellate court additional evidence was taken on the ground that the trial court without giving sufficient and reasonable opportunity to the defendants refused the prayer of the defendants to examine some witnesses to prove several documents. Those documents are, in particular, the admission register of La-lit and an application form for admission of Lalit in School. After the taking of the additional evidence, the appellate court held that the application for admission as also the admission register contained the signature of Dhirmohan. There was also the evidence of the Head Master who proved these documents that Lalit was the son of Dhirmohan. On the finding as stated, the appellate court set aside the judgm