Acknowledgment cannot confer legitimacy where marriage is disproved.

JUDGMENT :- The plaintiff is the son of Abdul Azeez Khan through his wife Amina Beevi. The defendants are the sons of the said Abdul Azeez Khan through his another wife Hairoon Beevi. As per Ex. A. 1, the marriage between the said Abdul Azeez Khan and Hairoon Beevi was on 3-1-1921 and as the birth extracts. Exs. A-2 and A-3, the defendants were born long prior to the marriage between Abdul Azeez Khan and Hairoon Beevi. The plaintiff's case is that the defendants are the illegitimate sons of his father in view of the fact they were born prior to the marriage between his father and Hairoon Beevi. The plaintiff has hence filed a suit for declaration that the defendants are not the legitimate sons of his father and to restrain them by means of a permanent injunction from interfering with the plaintiff's management and administration of Saint Veli Yullah Thaikkal. The defendant's contention is that there was a valid marriage between Abdul Azeez Khan and their mother Hairoon Beevi and their father has acknowledged them as his sons.

2. The trial Court held that the identity of the persons mentioned in the certificates Exs. A-2 and A-3 have not been proved and as there is a valid acknowledgment, the defendants are the legitimate sons of the plaintiff's father, Abdul Azeez Khan. On appeal the lower appellate Court held that Exs. A-2 and A-3 relate to the defendants and at the time of the birth of the defendants, there was no valid marriage between Abdul Azeez Khan and Hairoon Beevi, the mother of the defendants and as the defendants are the illegitimate sons of Abdul Azeez Khan, they cannot be made legitimate by acknowledgment of their legitimacy by the plaintiff's father. The first defendant has preferred the second appeal before this Court.

3. The learned counsel for the first defendant-appellant contended that the defendants' mother has been treated as his wife by the father of the plaintiff, and the plaintiff and defendants have been continuously living together under the same roof and properties were also allotted to the defendants in the family partition in 1953 and as family members, the defendants have been permitted to apply sandalwood paste to the graveyard of a Muslim Saint and as there has been a valid acknowledgment of their legitimacy by the plaintiff's father, they should be held as the legitimate sons of the plaintiff's father.

4. The leading case on the doctrine of acknowledgment is the decision of the Privy Council in Sadik Husain Khan v. Hashim Ali Khan ILR 38 All 627:(AIR 1916 PC 27) wherein it was held that in cases of uncertainty of legitimate descent, an acknowledgment by the father raises a presumption of legitimacy unless the other side can prove that the boy whose paternity was acknowledged was of illegitimate descent. The Privy Council has further pointed out that when a man and a woman have cohabited continuously for number of years, the law presumes in favour of marriage and against concubinage and an acknowledgment involves the assertion that the father was married to the acknowledgee's mother. So when a man has in his favour a good acknowledgment of legitimacy, the marriage will be held to have been proved and legitimacy established unless the marriage has been disproved. It is, therefore, clear that where the paternity of a child cannot be proved by establishing the marriage

between its parents at the time of its conception or birth, Mohamedan Law recognises 'acknowledgement' as a method whereby such marriage and legitimate descent can be established for the purpose of inheritance. The Mohamedan Law of acknowledgment of paternity can be invoked only where the factum of marriage or the exact time of the marriage has not been proved. The doctrine of acknowledgment is based on the assumption of a lawful union between the parents of the acknowledged child. The doctrine, however, is not applicable where the lawful union between the parents of the child is not possible as in the case of incestuous interco