Judgment :- 1. Defendants 17 to 20 in O.S.No.32 of 1981 on the file of the Subordinate Judge, Mayiladuthurai and respondents 17 to 20 in A.S.No.62 of 1983 on the file of the District Judge of East Thanjavur atNagapattinam are the appellants in S.A.No.597 of 1984. 2. Defendants 2, 21 and 22 in O.S.No.32 of 1981 and respondents 2, 21 and 22 in A.S.No.62 of 1983 are the appellants in S.A.No.1281 of 1984. The contesting respondent is the plaintiff in the suit and appellant in the appeal before the lower appellate court. The second appeals have been filed against the same judgment namely A.S.No.62 of 1983 by different parties to the proceedings. 3. The suit O.S.No.32 of 1981 was filed by the first respondent against 22 defendants, some of whom were tenants, and was for a decree that he was entitled to joint possession along with the first defendant in the suit, one Batcha Mohideen and others of the plaint A schedule properties with a joint right of management of B schedule trust and for a direction to the defendants 1 and 2 to render accounts to him and pay his due share in the surplus income from the trust properties from October, 1980. A genealogy has been appended and it is as follows: "DIAGRAM" For the purpose of convenience, the parties will be referred to by their names or ranks in the judgment as the context would require. Hameed Oli, the first respondent herein, filed the suit averring as follows: He was the son of one Shaik Ismail and Noorjahan. The first appellant in S.A.No. 1281 of 1984 was the wife of one Oliyullah alias Oli Maricair who was the son of one Mohamed Sultan. Hameed Oli and Noorjahan are shown in the genealogy as the descendants of one branch, namely, that of Hameed Ammal and Batcha Mohideen. The first defendant in the suit is shown as one of the descendants of the second branch, namely, Nijamudeen Maracair. There was a trust created in the plaint B schedule by Mohamed Rahman shown in the genealogy and the charities as mentioned therein should be conducted by the descendants of this founder of the trust. The first defendant in the suit is shown as one of the descendants of the second branch, namely, Nijamudeen Maracair. There was a trust created in the plaint B schedule by Mohamed Rahman shown in the genealogy and the charities as mentioned therein should be conducted by the descendants of this founder of the trust. The case of Hameed Oli is that he is the son of deceased Sheik Ismail and Batcha Mohideen, the first defendant is the son of Noorjahan and as such he is entitled to joint possession of the trust properties and do the trust along with Batcha Mohideen and in the residue he is entitled to a share as per the terms of the trust deed. But Batcha Mohideen alone has been in sole possession and enjoyment of the trust properties and a notice was issued to Batcha Mohideen after the death of Oliyullah alias Oli Maricair under the original of Ex. A.4, dated 7.1.1981, claiming joint possession of the trust properties. There was a reply under the original of Ex.B-3, dated 2.2.1981 is- sued on behalf of Noorjahan to Hameed Olis lawyer. Since Hameed Olis demand had not been complied with, the suit was necessitated. 4. The contesting defendants namely Batcha Mohideen (D-1), Noorjahan (D-2), Pathima Sultan Ammal (D-17), Ponnachi alias Rahmath Nachiar (D-18), Sovutha Ummani alias Sellachi Ammal (D-19) and Manjoor Gani (D-20) filed separate written statements. They resisted the suit contending mainly that Hameed Oli was not the legitimate son of deceased Sheik Ismail and as such he was not entitled to a joint possession of the trust properties and that his claim in this respect was barred by limitation as he had not participated in the prior litigation, nor did he participate in the residue of the rents and profits of the trust properties all these years. So far as the tenants were concerned they claimed to be cultivating tenants and filed written statements to the effect that they were prepared to measure the rent to the persons declared to be the owners of the trust. 5. The learned Subordinate Judge, Mayiladuthurai framed the following issues: 1. Whether the plaintiff is entitled to joint possession of the plaint A schedule properties along with first defendant with joint rights of management and for account. 2. Whether the plaintiffs claim is barred by time. 3. Whether the suit is bad for non-joinder of parties. 5. The learned Subordinate Judge, Mayiladuthurai framed the following issues: 1. Whether the plaintiff is entitled to joint possession of the plaint A schedule properties along with first defendant with joint rights of management and for account. 2. Whether the plaintiffs claim is barred by time. 3. Whether the suit is bad for non-joinder of parties. 4. Whether the plaintiff is the legitimate son of Sheik Ismail. 5. To what relief the plaintiff is entitled to. The learned subordinate Judge also framed an additional issue to the following effect: “Whether defendants 17 to 20 are in management of trust properties along with first defendant.” 6. After an elaborate trial, the learned Subordinate Judge held that the plaintiff Hameed Oli was born to Habib Nachiar (P.W. 1) through the deceased Sheik Ismail and that Habib Nachiar and Sheik Ismail had been living as husband and wife for a long number of years having continuous cohabitation and through this cohabitation Hameed Oli was born. However, the learned Subordinate Judge stated that Habib Nachiar had a husband by name Jainulabdin alive at the time when Habib Nachiyar married Sheik Ismail and that the marriage between her and Jainulabdin was not then put an end to and therefore the child namely Hameed Oli, the plaintiff born to Habib Nachiyar through Sheik Ismail during the subsistence of the marriage of Habib Nachiyar with Jainulabdin was an illegitimate son of Sheik Ismail and on this finding, the learned Subordinate Judge negatived the claim of Hameed Oli for joint possession and joint management of the trust and for rendition of accounts as against Batcha Mohideen and Noorjahan. On the question of limitation, the learned Subordinate Judge held that there could arise no question of limitation in view of the fact that Hameed Olis possession would be that of a co-owner with the deceased Oliyullah alias Oli Maricair, the husband of Noorjahan and accordingly he found that the suit was not barred by limitation. However ultimately he dismissed the suit. Aggrieved, Hameed Oli filed appeal A.S.No.62 of 1983 before the District Judge of East Thanjavur atNagapattinam. The learned District Judge framed the following points for consideration: 1. That the plaintiff was not the legitimate son of deceased Sheik Ismail although born out of the continuous cohabitation of Sheik Ismail with P.W.I Habib Nachiyar, and 2. Aggrieved, Hameed Oli filed appeal A.S.No.62 of 1983 before the District Judge of East Thanjavur atNagapattinam. The learned District Judge framed the following points for consideration: 1. That the plaintiff was not the legitimate son of deceased Sheik Ismail although born out of the continuous cohabitation of Sheik Ismail with P.W.I Habib Nachiyar, and 2. That even if the plaintiff were to be held as the legitimate son of the said Sheik Ismail, his claim at this stage is barred by limitation. After a re-appreciation and re-appraisal of the materials on record, oral and documentary evidence, the learned District Judge came to the conclusion that Hameed Oli was the legitimate son of Sheik Ismail and that the suit was not barred by limitation by virtue of Sec. 10of the Limitation Act that Hameed Oli was entitled to claim joint possession and joint interest in the trust in question at any time and his claim in this respect could not be said to have been barred by limitation. So holding, by his judgment and decree dated 30.11.1983, the learned District Judge set aside the judgment and decree of the trial court and allowed the appeal and decreed the suit as prayed for with costs. 7. Aggrieved, the present second appeals, have been filed by the respective appellants the details of which have already been given. 8. At the time of admission, the following substantial questions of law were framed for consideration in S.A.No.597 of 1984. (1) “Whether the lower appellate court is right in holding that the plaintiff is the legitimate son of Sheik Ismail when the marriage between the mother of the plaintiff and Sheik Ismail was disproved by the very admission of P.W.3” and (2) “Whether the principles laid down in Mohammed Khan Sahib v. Ali Khan Sahib, (1981)1 MLJ. 402 and Fathimabi Ammal v. A.A.Moohideen Fathimabi Ammal v. A.A.Moohideen Fathimabi Ammal v. A.A.Moohideen, (1971)2 MLJ. 451 would notapply to the facts of the case. 9. The counsels for the appellants in the respective second appeals Mr.S.Mohamed Shiela Mainer and Mr.G. Jermiah submitted as follows. 402 and Fathimabi Ammal v. A.A.Moohideen Fathimabi Ammal v. A.A.Moohideen Fathimabi Ammal v. A.A.Moohideen, (1971)2 MLJ. 451 would notapply to the facts of the case. 9. The counsels for the appellants in the respective second appeals Mr.S.Mohamed Shiela Mainer and Mr.G. Jermiah submitted as follows. The mother of the plaintiff, Habib Nachiyar who was examined as P.W. 1 clearly admitted in her evidence that at the time she married Sheiki Ismail, her former husband Jainulabadin was alive and on the basis of this admission the illegitimacy of the plaintiff Hameed Oli is clearly established and he has to be non-suited. Elaborating the same, the learned counsel took me through the evidence of P.W. 1 Habib Nachiyar and submitted that she had said as follows: "TAMIL" From this, the learned counsel for the appellants wants the court to infer that P.W. 1 Habib Nachiyar had admitted that at the time she married Sheik Ismail, her former husband was alive. According to the learned counsel if this admission is taken into consideration then her cohabitation with Sheik Ismail could not be termed to be the cohabitation of a husband and wife, but one of illicit intimacy and the issue born out of such cohabitation should be deemed to be illegitimate and the plaintiff Hameed Oli will therefore not be entitled to any relief in the suit. In support of this stand, the learned counsel also relied on the two judgments already referred to. He also further submitted that Hameed Oli did not figure in the earlier proceedings and that having slept over his alleged rights, his present claim was barred by limitation. 10. As against these submissions, Mr.N.Sankara-vadivel, the learned counsel for the contesting first respondent Hameed Oli submitted that the appellants were attempting to misread the evidence of P.W. 1, Habib Nachiyar that there was absolutely no such admission by Habib Nachiyar that she married Sheik Ismail at the time when her marriage with Jainulabdin was subsisting. The evidence, If read properly, would clearly show that she married Sheik Ismail after the death of Jainulabdin. The evidence, If read properly, would clearly show that she married Sheik Ismail after the death of Jainulabdin. Apart from that the counsel also relied on the evidence of P.W.3 Mohamed Sultan who had spoken to Sheik Ismail and P.W. 1 Habib Nachiyar living together as husband and wife for a long number of years and their having been accepted as husband and wife by the society at large, that the plaintiff Hameed Oli had been acknowledged by Sheik Ismail and others as the son of Sheik Ismail and in view of these overwhelming materials, the decree granted by the lower appellate court was perfectly in order and should be confirmed. The learned counsel also relied on the following two judgments in support of his contention. Ahasathulla v. Netagatali , A.I.R. 1929 Cal. 682 and Mohd.Amin v. Wakil Ahmad Mohd.Amin v. Wakil Ahmad Mohd.Amin v. Wakil Ahmad , A.I.R. 1952 S.C. 358. 11. The question to be decided is whether the plaintiff Hamed Oli was the legitimate son of Sheik Ismail and whether he can be non-suited on the ground of bar of limitation. 12. It is to be immediately noted that the Appellants as defendants nowhere in their written statements stated that P.W.1 Habib Nachiyar had a first husband, Jainulabadin living when she contracted her marriage with Sheik Ismail. The written statements merely say that the plaintiff Hameed Oli is the illegitimate son of Sheik Ismail. The appellants attempt to spin out a case of an earlier subsisting marriage on basis of the evidence of P.W. 1 Habib Nachiyar where for the first time she referred to her having married one Jainulabadin before she married Sheik Ismail. In the course of her evidence, this is what she has stated: "TAMIL" In cross-examination she had stated as follows: "TAMIL" From this it is impossible to infer that P.W.I Habib Nachiyar had married Sheik Ismail during the subsistence of her marriage with Jainulabadin. She had clearly stated that she married Sheik Ismail 7 or 8 years after the death of her first husband. It is also very material to note that the age difference between her daughter Ahamed Nachiyar through her first marriage and her son Hameed Oli through her second marriage is nine years. Thus the so-called admission by P.W. Habib Nachiyar is not there. It is also very material to note that the age difference between her daughter Ahamed Nachiyar through her first marriage and her son Hameed Oli through her second marriage is nine years. Thus the so-called admission by P.W. Habib Nachiyar is not there. This coupled with the evidence of P.W.3 which is as follows: "TAMIL" would make the position clear. 13. No doubt there is no material to show that a marriage took place between P.W. 1 Habib Nachiyar and Sheik Ismail but there is enough evidence to show that they had lived as husband and wife for a long number of years and they have also been recognised as husband and wife by the society at large. They were living as husband and wife openly. The learned counsel for the appellants submitted that when the marriage between P.W.1 Habib Nachiyar and Sheik Ismail had been admitted by P. W.3 as not having taken place, it should be held that there was no valid marriage. This, in my view is not sustainable. There is indeed prohibition not only under Muslim Law but under other laws also that one spouse cannot contract a marriage during the subsistence of the marriage with another but when the marriage is no longer there by virtue of a divorce or the death of one of the spouses there is absolutely no prohibition for the divorced or widowed spouse to contract another marriage. It is indeed not necessary to clearly establish by any unimpeachable evidence that a second marriage did indeed take place. As has been held by the lower appellate court that “there was no marriage as such between P.W. 1 Habib Nachiyar and Sheik Ismail. They had lived as husband and wife publicly for several years and during that cohabitation the plaintiff was born and not only that the plaintiff was also recognized by acknowledgement as the son of Sheik Ismail by one and all the thus the plaintiff is the son of Sheik Ismail.” Thus, though the marriage between Sheik Ismail and P.W. 1 Habib Nachiyar cannot be stated to have been established or proved satisfactorily, still there was an acknowledgement of the parties living together as husband and wife and consequent recognition of the two as husband and wife and subsequent acknowledgement of paternity of Hameed Oli as the son of P.W.1 Habib Nachiyar and Sheik Ismail. 14. 14. No exception can be taken to the finding reached by the lower appellate court that P.W.I Habib Nachiyar and Sheik Ismail had been recognised and acknowledged as wife and husband by the society at large. The next question is whether the plaintiff Hameed Oli is the legitimate son of P.W.I Habib Nachiyar and Sheik Ismail. Mulias Mahommedan Law, 19th Edition,Sec.342 (P.279) deals with acknowledgement of Paternity. It is stated as follows: “Where the paternity of a child that is his legitimate descent from his father cannot be proved by establishing a marriage between his parents at the time of his conception or birth, the Mahommedan Law recognises acknowledgment as a method whereby such marriage and legitimate descent can be established as a matter of substantive law for purposes of inheritance.” 15. The Mahommedan Law on acknowledgment of parentage with its legitimating effect has no reference whatsoever to cases in which the illegitimacy of the child is proved or established either by reason of a lawful union between the parents of the child being impossible (as in the case of incestuous intercourse or adulterous connection), or by reason of marriage necessary to render the child legitimate being disproved. The doctrine relates only to cases where either the fact of the marriage itself or the exact time of occurrence with reference to the legitimacy of the acknowledged child is not proved in the sense of the law as distinguished from disproved. In other words, the doctrine applies only to cases of uncertainty as to legitimacy, and in such cases acknowledgement is necessary, but that fact always proceeds upon the assumption of a lawful union between the parents of the acknowledged child. In short, the doctrine applies only to cases where either the fact or the exact time of the alleged marriage is a matter of uncertainty, that is neither proved nor disproved. Stating in another form, the doctrine is limited to cases of uncertainty of legitimate descent, and proceeds entirely upon an assumption of legitimacy and the establishment of such legitimacy by force of such acknowledgement.” 16. No doubt as has been held in Fitma Bidnty v. Administrator General, Zancibar, A.I.R. 1949 PC. 254: (1949)2 MLJ. 484 mere acknowledgment of paternity will in no way establish anything but a casual union and more is required to show the existence of the marriage bond. 17. No doubt as has been held in Fitma Bidnty v. Administrator General, Zancibar, A.I.R. 1949 PC. 254: (1949)2 MLJ. 484 mere acknowledgment of paternity will in no way establish anything but a casual union and more is required to show the existence of the marriage bond. 17. Asaf A.A.Fyzee in his book on “Mahommedan Law” second edition has stated as follows: “Acknowledgement (Iqrar) of paternity takes place in Islam as follows: (i) Where a paternity of a child is not known or established beyond a doubt…. The rule as to acknowledgement of legitimacy arises only if the paternity of the child is not certain. To use the terminology of the Indian Evidence Act, the paternity of the child must neither be proved nor disproved but it should be ‘not proved’. In Roshnabhai v. Suleman , A.I.R. 1944 Bom. 213 it has been held as follows: “In respect of acknowledgement of a son, it is further clear that the acknowledgment must be as of a legitimate son and mere acknowledgment of paternity is not sufficient to raise a presumption of legitimacy or marriage. It is further clear that in the event of disproof of marriage no amount of acknowledgment can make presumption override the fact and persuade the court to decide the matter on the presumption. It is useful in this connection to bear in mind the definitions of ‘proved’, unproved’ and ‘disproved’ given in the Evidence Act. Applying those definitions to the question of marriage and legitimacy, it appears proper to state that if marriage is proved no question of acknowledgment remains to be considered. Only when by reason of time or circumstances the question of marriage is in a state of being ‘unproved’, the question of acknowledgment arises, and in dealing with that question satisfactorily, evidence has to be led of clear acknowledgment.” 18. Only when by reason of time or circumstances the question of marriage is in a state of being ‘unproved’, the question of acknowledgment arises, and in dealing with that question satisfactorily, evidence has to be led of clear acknowledgment.” 18. Faiz Badruddin Tyabji in his “Muslim Law” Fourth Edition has the following to say on the question of acknowledgment of paternity in Sec.225: “The paternity of a child is presumed in any man who acknowledges it with the intention of admitting that it has been established: provided that each of the following five conditions are complied with: viz., that (1) the paternity of the child is not established in anyone else; (2) the ages of the parties are such that they may be father and child: (3) the child, if it is of an age to confirm or acquiesce in the acknowledgment, does so; (4) the man could at the time when the child was begotten, have lawfully been the husband of its mother, which implies (a) that it has not been proved that the child is the offspring of illicit inter-course; and (b) that the alleged marriage has not been disproved; and (5) the acknowledgment is not merely of sonship, but of legitimate sonship (the fact, however, that the acknowledgement was of legitimacy as well as of sonship, may be inferred from circumstances justifying that inference).” 19. In Syed Ameer Alis “Mahommedan Law”, Fourth Edition, Vol.11 on the doctrine of acknowledgment the learned author states as follows: “But if a man were to conhabit with a woman (not by way of a casual relationship), and to have issue by her and were to acknowledge such children as his legitimate’ offspring, such acknowledgment would supply any defect in the evidence of marriage. The acknowledgment of legitimacy proceeds upon the basis of a prior lawful relationship between the parents. If the marriage, however, is alleged and disproved, the effect of an ‘implied’ acknowledgment as deducible from mere treatment is minimised, for, as already stated, ‘an acknowledgment to be effective must directly or indirectly point to the children as the legitimate issue of the acknowledged.” 20. If the marriage, however, is alleged and disproved, the effect of an ‘implied’ acknowledgment as deducible from mere treatment is minimised, for, as already stated, ‘an acknowledgment to be effective must directly or indirectly point to the children as the legitimate issue of the acknowledged.” 20. Dr.Thahir Mohammed in his Treatise on the Muslim Law” second edition, states as follows on acknowledgment: “Muslim Law is prepared to honour the acknowledgment of a child by his begetter strictly subject to the following conditions: the child acknowledged must not knowingly be the child of another man. II. it must not be, knowingly illegitimate by law. III. there must be a possibility of matrimonial relationship, recognizable by law between the acknowledgor and childs mother, IV. the child must not be known to others, as child born out of wedlock (whom Muslim Law regards as wailed-uz-zina) and hence legitimate, V. the acknowledged child must not have disclaimed the paternal relationship with the acknowledgor, and VI. having regard to their age, the acknowledgor and the child should be acceptable as father and child.” 21. In his “Treastise on Islamic Law “Sixth edition B.R.Verma in Sec.75 says as follows: (1) An acknowledgment, express or implied, by a person who is of sound mind that another person is his child or that the mother of the child is his wife by a valid marriage confers upon such child the status of legitimacy provided that the following conditions are satisfied: (a) that the marriage is not disproved; (b) that the acknowledgment is one of the legitimacy of the child; (c) that the relationship is not impossible by reason of disparity between the ages or otherwise; (d) that the person acknowledged, if he has attained discretion, does not repudiate the acknowledgment. (2) An acknowledgment of paternity of child by the mother would also, subject to the same conditions, confer the status of legitimacy on the child if the acknowledgment is contemed by the husband or is not opposed by any other heirs if the husband is dead.” 22. The doctrine of acknowledgment of paternity is based upon the disinclination of the Mahommedan Lawyers to bastardize the children unless the facts and circumstances clearly warrant such a course. The doctrine of acknowledgment of paternity is based upon the disinclination of the Mahommedan Lawyers to bastardize the children unless the facts and circumstances clearly warrant such a course. In Macnaughtens “Mahommedan Law” it is observed as follows: “the Mahommedan lawyers carry this disinclination (that is against bastardizing) much further; they consider it the legitimate of reasoning to infer the existence of a marriage from the proof of cohabitation… none but children who are in the strictest sense of the word spurious are considered incapable of inheriting the estate of their putative father… whereby any possibility of a marriage may be presumed, the law will rather do so then bastardize the issue and whether a marriage is simply voidable or void ab initio the off spring of it will be deemed legitimate.” 23. In Mohd. Amin v. Wakil Ahmad, A.I.R. 1952 S.C. 358 relied on by the learned counsel for the contesting first respondent, it has been held as follows: “The presumption of marriage arises in Mahommedan Law in the absence of direct proof or a prolonged and continuous cohabitation as husband and wife.” 24. There are enough materials on record to show that P.W. 1 Habib Nachiyar married Sheik Ismail only after the death of her first husband. As already pointed out, it is not the case of the appellants that she married Sheik Ismail at a time when her marriage with Jainulabadin was subsisting. Her clear cogent evidence is that she had first married Jainulabadin, she had a daughter through him that she married Sheik Ismail seven or eight years after the death of Jainulabadin and that the difference in age between her daughter through Jainulabdin and her son through Sheik Ismail is nine years. Nowhere she had admitted that she married Sheik Ismail while Jainulabadin was alive and no inference at all is possible from her evidence that when she married Sheik Ismail Jainulabdin was alive. Thus she was in a position to contract a valid marriage and her case is Sheik Ismail married her as his second wife. The learned counsel for the appellants referred to the evidence of P.W. 1 to the following effect and wanted the court to infer from that, that the plaintiff Hameed Oli could not have been the son of Sheik Ismail at all. The learned counsel for the appellants referred to the evidence of P.W. 1 to the following effect and wanted the court to infer from that, that the plaintiff Hameed Oli could not have been the son of Sheik Ismail at all. In the submission of the learned counsel, it could not have been possible for the second wife to get a child first and the first wife to get a child later than the first wife. I do not think there is any logic in the submission of the learned counsel. Instances are plenty where these things have happened. There is absolutely no-material produced by the contesting defendants/appellants that P.W. 1 Habib Nachiyar started living with Sheik Ismail in illicit intimacy at a time when her marriage with Jainulabadin was subsisting. The evidence on the side of the defendants/appellants has been rightly rejected by the lower appellate Court on this aspect. D. W. 1 is totally incompetent to speak anything about the marriage or legitimacy, Her evidence is only hearsay. It is admitted by D.W.2 that P.W.3 was the President of Haraih Jamath. He was also the President of Panchayat and that he knew about Sheik Ismails family well. This coupled with the evidence of P.W.3 himself would clearly establish that Sheik Ismail and Habib Nachiyar where living as husband and wife for a long number of year and they were treated as husband and wife by the society at large and that it was not correct to say that the plaintiff was not the son of Sheik Isamil and Habib Nachiyar. This evidence is, in my view, entitled to acceptance. In a case reported in Alamgir v. The State , A.I.R. 1957 Pat. 285 a similar question arose. “It was submitted that Rahmatia had married twice, that is to say, she was married before she married the complainant, and as she had left her former husband, the second marriage could not be legal and the former marriage subsisted there being no divorce. This submission is based on no evidence whatsoever. The evidence simply is that Rahmatia had married once before she married the complainant. There is no evidence to the effect that Rahmatia left her former husband or that the former husband left her. How that marriage came to an end is not in evidence. This submission is based on no evidence whatsoever. The evidence simply is that Rahmatia had married once before she married the complainant. There is no evidence to the effect that Rahmatia left her former husband or that the former husband left her. How that marriage came to an end is not in evidence. It cannot in these circumstances be held that the former marriage subsisted and, therefore, the second marriage must be deemed to be illegal…. As I have already pointed out, the mere fact that Rahmatia was married once before does not necessarily show that the subsequent marriage was not legal, because the former marriage may have legally ended either by divorce or death.” 25. In the instant case, a similar marriage had come to an end by death and there was no Prohibition for P.W.I Habib Nachiyar to contract a marriage with Sheik Ismail. In my view, the marriage has been established. 26. The learned counsel for the appellants placed reliance on the decision reported in Fathimabi Ammal v. A.A.Moohideen Fathimabi Ammal v. A.A.Moohideen Fathimabi Ammal v. A.A.Moohideen, (1971)2 MLJ. 451 . It has been held in that decision as follows: “If a person acknowledges another to be his son or daughter, he must be taken to mean his legitimate son or daughter, unless the contrary appears - vide: Fuzeeiun Beebee v. Omdahbeebee and Shah vide: Fuzeeiun Beebee v. Omdahbeebee and Shah vide: Fuzeeiun Beebee v. Omdahbeebee and Shah, (1868)19 W.R. 469. But where marriage is disproved or where marriage is not possible at all, mere acknowledgment of paternity is insufficient to establish legitimacy.” There is no dispute about the proposition of law. In the instant case, the marriage between P. W. 1 Habib Nachiyar and Sheik Ismail has not been disproved and the decision will not in any way help the case of the appellants. 27. Mohammed Khan Sahib v. Ali Khan Sahib, (1981)1 MLJ. 402 P.Venugopal, J. stated the law on acknowledgment as follows” “Mahomedan Law recognises ‘acknowledgment’ as a method whereby such marriage and legitimate descent can be established for the purpose of inheritance. The Mahommedan 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 Mahommedan 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 intercourse or an adulterous connection. The doctrine is also not applicable where the marriage necessary to render a child legitimate is disproved.” Again, this case will not help the case of the appellants for the simple reason that the marriage between Sheik Ismail and P.W. 1 Habib Nachiyar has not been disproved. There was no embargo for P.W. 1 Habib Nachiyar to marry Sheik Ismail when her first husband was dead and gone. The mere fact that there was no form of marriage gone through would not by any stretch of imagination disprove the factum of marriage. Having regard to the facts and circumstances of the case, as has been held by the Supreme Court in Mohd. Amin v. Vail Ahmad already referred to there was no insurmountable obstacle to the marriage between Sheik Ismail and P.W. 1 Habib Nachiyar and they had cohabited with each other continuously and for a prolonged period. The presumption of lawful marriage did arise in the case and it has to be held that the marriage was lawful between Sheik Ismail and P.W. 1 Habib Nachiyar. Having held that a valid marriage had been established between Sehik Ismail and P.W. 1 Habib Nachiyar or in any event a marriage having taken place between them not having been disproved it automatically follows that the plaintiff Hameed Oli is the legitimate son of the two. Abundant materials have been produced to show that the plaintiff is the son of Sheik Ismail and P.W.I Habib Nachiyar. Ex.A-7 dated 24.12.1980 is a certificate issued by Muslim Uravinmurai Nirvaga Sabai, Porayar with regard to the birth of one boy to Sheik Ismail through P.W.1 Habib Nachiyar. P.W.3 also speaks to this document. Ex.A-8 dated 6.12.1982 an extract of the register of marriage maintained by the Nirvaga Sabai shows the marriage between the daughter of Sheik Ismail and P.W.I Habib Nachiyar with a bridegroom. P.W.3 also speaks to this document. P.W.3 also speaks to this document. Ex.A-8 dated 6.12.1982 an extract of the register of marriage maintained by the Nirvaga Sabai shows the marriage between the daughter of Sheik Ismail and P.W.I Habib Nachiyar with a bridegroom. P.W.3 also speaks to this document. In the Nikkah register (Ex.A-8) it is found that Sheik Ismail and P.W.1 Habib Nachiyar lived as husband and wife and that was how their daughters marriage had been duly performed and registered in the said Uravinmurai Nirvaga Sabai. Ex.A-9 dated 26.2.1940 is the registration copy of a sale deed by P.W. 1 Habib Nachiyar in favour of one Ayyakkannu Pillai in respect of certain properties and in this document P.W. 1 Habib Nachiyar has been shows as the wife of Sheik Ismail. Sheik Ismail himself had attested this docu-ment. These are more positive evidence substantiating the case of the plaintiff. The evidence produced on the side of the defendants has been rightly rejected by the lower appellate court. Exs.B-5, B-8 and B-9 relied on by the defendants do not in nay way disprove the case of the plaintiff. Just because the present plaintiff was not impleaded in the prior proceedings, the plaintiffs status and right to be in joint possession of the trust in question cannot in any way be affected. It is significant to note that in those proceedings Sheik Ismails first wifes daughter, undoubtedly, legitimate child of Sheik Ismail, had not been made a party. Rightly, did the lower appellate court reject the contentions of the appellants that the non-inclusion of the present plaintiff in those proceedings would in any way lead to the conclusion that the plaintiff Hameed Oli was not the legitimate son of Sheik Ismail. There was no specific pleading or finding in those proceedings. Therefore no inference against the plaintiff could be drawn from the prior proceedings. 28. In sum, I hold that it has been clearly established that the plaintiff in the suit viz., Hameed Oli is the legitimate son of Sheik Ismail and P.W. 1 Habib Nachiyar and that he is entitled to maintain the suit for the reliefs prayed for. Equally having regard to the provisions of Sec. 10 of the Limitation Act there is no question of bar of limitation. Equally having regard to the provisions of Sec. 10 of the Limitation Act there is no question of bar of limitation. In view of the decision above, the judgment and the decree of the lower appellate court are confirmed, the substantial question of law are answered against the appellants in both the second appeals and the second appeals are dismissed. However there will be no order as to costs.