1. This appeal arises out of a suit for establishment of title to and recovery of possession of certain properties and also for accounts. The plaintiff being unsuccessful in both the Courts below have preferred this second appeal.

2. Abdul Azim and Abdul Gani were two brothers. Abdul Gani died in 1318 B.S. leaving two sons, Makram Ali and Nizamat Ali, the latter having been defendant 1 in the suit and he having died his heirs were substituted in his place. Abdul Azim had two daughters whose names were Kali Bibi and Choto Bibi. The plaintiff claims that he and the pro forma defendant Lal Bibi were the son and the daughter of Abdul Azim by his second wife Najibannessa. Abdul Azim died in 1328 B. S.

3. In 1295 Abdul Gani and his wife and Abdul Azim made a wakf in respect of their properties, providing that the sons of Abdul Gani and their heirs were to be mutwallis. On the death of Abdul Gani in 1318, Makram Ali instituted a suit in 1914 for a declaration that the wakfnama was invalid and for establishment of his title by inheritance to an eight-anna share of the properties left by his father. This suit was disposed of in 1919, the wakfnama being declared invalid, and amongst other declarations made it was declared that the properties mentioned in Schedule Ka and Kha of the plaint and some other properties were the properties of Abdul Azim. The plaintiff alleged in his plaint that after his decision Abdul Azim demanded possession of all his properties till his death in 1328 B.S.

4. There were various defences taken, which necessitated the framing of no less than 18 'issues. Of these only one, namely issue 6, was really tried and it being decided against the plaintiff the suit has been dismissed. That issue was worded thus:

Was plaintiff's mother married wife of Moulvi Abdul Azim deceased and is plaintiff his legitimate son ?

5. The proof that the plaintiff adduced falls under the following heads: (1) Acknowledgments made by Abdul Azim himself. (2) Evidence showing legitimacy of the plaintiff's sister Lal Bibi, as on the proof of her legitimacy the plaintiff's legitimacy follows as a matter of course. (3) Evidence of conduct on the part of other members of the family. (4) Direct oral evidence of marriage between Abdul Azim and Najibannessa. In disproof of the plaintiff's legitimacy the defendants have relied on: (a) the absence of a kabinnamah in respect of the alleged marriage between Abdul Azim and Najibannessa; (b) the fact that Abdul Azim joined with Abdul Gani and his wife in creating a wakf which was to be administered by Abdul Gani's sons and their heirs, (c) the evidence of a witness who happened to be the Sub-Registrar of Dacca, (d) The evidence afforded by the absence of the plaintiff from a photograph representing the family group (e) Positive evidence to the effect that the plaintiff's mother was the kept woman of somebody else for sometime and that she was but a woman who tended cattle in the house of Abdul Azim and Abdul Gani and of the latter's son, and (f) some evidence of the treatment she received from the family.

6. Now, of the different items of evidence adduced on behalf of the plaintiff, item (1) is of the utmost importance. Leaving aside the evidence of oral acknowledgment (as spoken to by P. Ws. Nos. 2, 3, 4, 7 and 10) and such documentary evidence of acknowledgment as may be said to be of doubtful import, describing the plaintiff merely as a son and not as a legitimate son (e. g., Exs. 5, 6, 10, 18, 72, 76, (a), 76 (b), 76 (d) and 80 (a), there are four pieces of documents the importance of which cannot be overrated. They are Exs. 13, 2, 3 and 4. In these the plaintiff was declared by Abdul Azim to be his legitimate son born of his loins and in the womb of his last married wife Najibannessa. These acknowledgments exactly fulfil the requirements of the law as explained by their Lordships of the Judicial Committee in these words:

This acknowledgment must be not merely of sonship, but must be made in such a way that the acknowledgor meant to accept the other not only as his son, but as his legitimate son: Habibur Rahman v. Altaf Ali Choudhury A.I.R. 1922 P.C. 159.

7. Now item (4) of the evidence, namely, the direct evidence of the marriage has not been accepted as reliable by either of the Courts below, and in second appeal it cannot possibly be relied upon. But what is the legal effect of this position ? It has been so summarized by the District Judge:

But direct evidence of marriage has been put in, and I think that, in such circumstances when the appellant has put forward a definite marriage on a definite date, if the Court disbelieves that, then the respondent can rightly claim that some progress has been made towards the disproof of marriage, for it is recognized that it is for the respondent to disprove marriage.

8. This was precisely the position in the case of Imambundi v. Mutsaddi A.I.R. 1918 P.C 11, in which their Lordships of the Judicial Committee found the direct evidence of marriage by no means satisfactory and still proceeded to give effect to the legal presumption arising from acknowledgment holding that such presumption was not rebutted. Their Lordships thus observed:

But their Lordships find clear evidence of a reliable character regarding the acknowledgment of her children. Her case thereupon comes within the rule of Mahomedan Law to which Garth, C.J. and Wilson, J. (afterwards Sir Arthur Wilson) gave expression in Mahatala Bibi v. Prince Ahmed Haleem-ooz-zaman 10 C.L.R. 293.

9. To hold that when the plaintiff has failed to add to the presumption by proving the marriage aliunde the effect of the presumption is lost in whole or in part, or in other words that the defendant has by such failure on the plaintiff's part made some progress for themselves is contrary to the view expressed ,as above by their Lordships of the Judicial Committee. The learned District Judge was, therefore, not right in his appreciation of the law in this respect.

10. It is as well here to consider what is the true effect of this legal presumption. In Sadik Husain Khan v. Hashim Ali Khan A.I.R. 1916 P.C. 27, Lord Atkinson delivering the judgment of the Board said as follows:

If this be so the rule of the Mahomedan Law applicable to the case is well established. No statement made by one man that another (proved to be illegitimate) is his son can make that other legitimate, but where no proof of that kind has been given such a statement or acknowledgment is substantive evidence that the person so acknowledged is the legitimate son of the person who makes the statement provided his legitimacy is possible.

11. Much to the same effect are the words of the judgment in the case of Mt. Nawabunnissa v. Mt. Fuzloonissa 2 Hay. 479, which was quoted by Garth, C.J. and Wilson, J., in the case of Mahatala Bibi v. Prince Ahmed Haleem-ooz-zaman 10 C.L.R. 293, a case cited approvingly by the Judicial Committee as already mentioned. It was said in that case:

When a man has openly, and for a long course of time, lived with a woman, as a man lives with his wife, and has habitually and openly treated the children as his children before the world or whom he has publicly and advisedly said, of a boy begotten by himself, " this is my son," then the presumption takes its full effect. In that case, we think that the law not only raises a presumption of marriage, but in practice prohibits any counter proof short of establishing a legal impossibility. In such a case we may not really believe that there was an actual celebration of marriage; we may have little doubt that there was nothing of the kind; but marriage is legally possible, and it must be presumed, not as much by presumption of fact, as by presumption of law.

12. If item (1) creates a presumption of which the plaintiff can avail notwithstanding that item (4) has not been accepted, let us examine the effect of the other two items, viz. (2) and (3). As regards item (2) it appears that Lal Bibi married the brother of the wife of defendant 1's brother and the dower was exactly the same as in the case of Kali Bibi an admitted legitimate daughter of Abdul Azim and in the kabinnamah she is described as daughter of Abdul Azim and designated Khanum. All this immensely adds to the presumption and the District Judge was also of opinion that it is weighty. As regards item (3) the account books as well as the signature of the plaintiff as an identifier do not go very far, but that certainly does not take away from the presumption.

13. To rebut the presumption the defendants have adduced evidence which has been classified above under six heads, (a) to (f). The plaintiff's failure to prove the kabinnamah which is item (a) is something which cannot possibly be held to disprove the marriage. Item (b) is sufficiently explained by the fact that the plaintiff was not born at the date and the consideration that weighed with the District Judge, namely, that if there was hope of a lawful issue Abdul Azim would not create such a wakf, may be explained on more hypotheses than one. Item (c) is a mere matter of opinion, and hardly any evidence in disproof of legitimacy. The District Judge himself has set no store by item (d) and has definitely disbelieved item (e). As regards item (f), two witnesses for the defendant have deposed to the effect that Najimannessa was not buried in the family burial ground. The trial Court relied on these witnesses, but the District Judge has not referred to them. Their evidence, on other points, is scarcely believable for they deposed that Najimannessa tended cattle and slept in the baitakkhana, which she would never do in any view of the ease. In any event, the District Judge does not appear to have been impressed with their evidence, for he says that Najimannessa had some sort of footing in the household.

14. None of these items of evidence, (a) to (f), nor all of them together disprove the marriage or make the marriage an impossibility. The presumption in plaintiff's favour stands unrebutted and must have its effect.

15. The result is that issue 6 must be answered in the affirmative, with the result the other issues framed would require trial.

16. The appeal is, therefore, allowed, and the judgments of the Courts below being set aside the case will be sent back to the trial Court for trial and determination of the other issues in the case, and on that being done the suit will be disposed of by that Court.

17. Costs heretofore incurred will be costs in the cause. The cross-objection is dismissed but without costs.