MOHAMED KHAN SAHIB Vs. ALI KHAN SAHIB

JUDGEMENT

(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.