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Mohamed Khan Sahib Vs. Ali Khan Sahib and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberS.A. No. 525 of 1977
Judge
Reported inAIR1981Mad209
ActsEvidence Act, 1872 - Sections 112
AppellantMohamed Khan Sahib
RespondentAli Khan Sahib and anr.
Cases ReferredSadik Husain Khan v. Hashirn Ali Khan
Excerpt:
- - 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. 3 have not been proved is clearly erroneous since the father's 'name and the mother's name of the child are mentioned both in exs. 1. which clearly establish that the birth certificates......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 tons 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 aefendant'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.....
Judgment:

1. 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 tons 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 aefendant'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 plaintiffs 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 sons of Abdul AzeezKhan, thev 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 1,953 and as family member, 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. Hashirn 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 tune 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 how ever, is not applicable where the lawful union -between the Parents of the child is not Possible as in the case of incestuous intercourse or an adulterous connection. The doctrine is also not applicable where the marriage necessary to render a child legitimate if disproved.

5. In the instant case it can be seen from Ex. A. 1 that the marriage between plaintiff's . father and defendant mother took place on 13-1-1921, whereas the defendants, as Per Exs. A. 2 and A. 3. were born to. their parents long prior to the marriage. The finding of the trial Court that the identity of the persons mentioned in Exs. A. 2 and A. 3 have not been proved is clearly erroneous since the father's ' name and the mother's name of the child are mentioned both in Exs. A. 2 and A. 3 and they early refer only to the plaintiff's got and the defendants' mother, The contention that the residential addresses are not mentioned in Exs. A. 2 and A. 3 ~ and: hence they cannot be taken as relating to the defendants cannot be accepted. since there is no column under Exs. 2 and A.3 to give the residential address of the parents of the child descriptive particulars mentioned in Exs. A. 2 and A. 3 regarding the parents of the child am sufficient to indicate that the birth certificates relate only to the defendants. There is aim the evidence of P. W. 1. which clearly establish that the birth certificates. Exs. ,A. 2 and A. 3 relate only to. the defendants, The genuineness of E= A. 2 and A. 3 cannot be doubted since they are official documents maintained according to the procedure contemplated under French Code Civil. Except for a denial that Exs A. 2 and AL 3 do not, relate to them the defendants have not, ''come forward to establish the actual date of the marriage of their father with their .115~other. Hairoon Beevi, or their actual'date of birth The father's name and mothers name given in Exs.2 and. A., 3 are the same as the name of the Plaintiff's father and the defendant's mother and they cannot be brushed aside just as a mere coincidence. The trial Court's finding that in the Karaikal region there are many Muslim parents having the same name as mentioned in Exs. 4 2.and A. 3, cannot be accepted as there is absolutely no evidence in. support of that finding. It, therefore, follows that at the time of the birth of the defendants there was n0, valid marriage between the Plaintiff's father and their- mother Hairoon Beevi and as the defendants were born during the Pre-marital stage, they cannot be considered as the legitimate sons 191. the plaintiff's father,'- There is also no evidence to show that the plaintiff's father had at any time acknowledged their mother Hairoom Beevi as his wife prior to Ex. A. 1. As there was no marriage between the Plaintiff's father the defendants' mother prior to their birth as evidenced by Exs. A. 2 and3 they cannot be held to be legitimate the sons of the plaintiff's father by relying on the doctrine, of 'acknowledgments. A, child born of 'Ziana' cannot be made legitimate acknowledgment .Similarly the defendants who were born before the date of marriage of their mother with the plaintiff's father cannot be held to be legitimate sons of plaintiffs father by relying on the doctrine of acknowledgment.

6. In the result, the judgment of the lower appellate Court is c6nfirmed and 'the appeal fails and stands -dismissed, in 'the circumstances without costs.

7. Appeal dismissed.


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